W5e59g 
1899 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


SOME  RECENT  CRITICISM 


OF 


GELPCKE  VERSUS  DUBUQUE 


Being  the  Sharswood  Prize  Essay  for  1899,  ^^  ^^^ 

Department  of  Law,  University 

OF  Pennsylvania 


BY 


THOMAS  RAEBURN  WHITE,  B.L.,  LL.B. 

Member  of  the  Philadelphia  Bar,  Fellow  of  the  Department  of  Law  and 

Lecturer  on  Business  Law  and  Contracts  in  the  College 

Department,  University  of  Pennsylvania 


PHILADELPHIA  : 
1899 


'8 


ic^^ 


n 


{a\~ 


r  \ 


SYNOPSIS. 


PAGE 

Introductory i 

Section  I.— STATEMENT  OF  THE  CASE 2 

Section  II.— THE  PRINCIPIvE  UPON  WHICH  THE  CASE  WAS 
DECIDED 3 

A.  The  federal  courts  are  bound  absolutely  to  accept  the  state  court's 
interpretation  of  state  statutes 3, 

B.  The  decision  was  based  on  the  theory  that  the  state  courts'  re- 

versal of  interpretation  of  the  statute  was  a  law  impairing  the 

obligation  of  contracts 2r 

Section  III.— THE   DISSENTING  OPINION  OF  Mr.  JUSTICE 

MILLER 28 

Section  IV.— EXAMINATION  OF  AUTHORITIES   FOR  THE 

PRINCIPLE  INVOLVED 34 

A.  The  judicial  construction  of  a  state  statute  becomes  a  part  of  the 

statute,  as  much  so  as  if  incorporated  into  the  text 34 

B.  The  federal  courts  have,  in  fact,  treated  the  judicial  interpretation 

of  state  statutes  by  state  courts,  as  being  the  law,  not  merely  the 

interpretation  of  the  law 36. 

Section  V.— DISCUSSION  OF  THE  CASE  ON  PRINCIPLE    .    .    55 

A.  The  rule  in  Gelpcke  v.  Dubuque  has  never  been  disputed  by 
authority ^y 

B.  Is  the  function  of  the  American  courts,  when  deciding  as  to  the 

validity  of  legislative  acts,  a  legislative  or  judicial  function  ?  .    .    60 

(1)  The  Status  of  the  Power  to  Negative  Legislative  Acts 

IN  European  Countries 6a 

(2)  An  Examination  of  the  Opinions  of  the  Framers  of  the 
Constitution,  as  Expressed  in  the  Federai,  Convention    67 

(a)  The  end  which  the  framers  of  the  Constitution  had  in  view  .    67 

(b)  Methods  proposed  by  which  it  was  intended  to  accomplish 
this  purpose 69 

(c)  The  clause  or  clauses  in  the  Constitution,  by  virtue  of  which 
the  courts  obtained  the  power  to  pass  upon  the  validity  of 
legislative  acts 74 

iii 


iv  SYNorsis. 

I'AC.IC 

v^,;'  Thk  Manni:r  in  which  thk  Hxi;kcisk  ok  thic  I'owicr  was 

Ri:ci:ivi:n  hv  thk  Country 77 

".  Conchuliug  observations 81 

Auction     VI.— SHOULD     THE     SUPREME     COURT    ALLOW 
WRITS  OK  ERROR  IN  CASES  SIMILAR  TO  GELPCKE  v. 

DUBUQUE? 84 

/.  All  examination  of  the  cases  similar  to  Gelpckc  v.  Dubuque  which 
have  come  up  by  writ  of  error  to  state  courts  and  have  been  re- 
fused consideration  84 

I).  An  examination  of  the  cases  coming  up  by  writ  of  error  to  state 

courts  where  the  act  involves  a  contract 88 

C.  The  question  of  jurisdiction  examined  on  principle 90 


TABLE   OF    CASES. 


PAGE 


Adams  v.  Nashville,  95  U.  S.  19 ^^ 

Aicardi  v.  The  State,  19  Wall.  635 16 

Amy  V.  Allegheny  City,  24  How.  364 i^ 

Anderson  z^.  Santa  Anna,  116  U.  S.  356 27,41 

Bacon  v.  Texas,  163  U.  S.  207 86 

Bailey  v.  Magwire,  22  Wall.  215 16 

Bank  v.  Bank,  14  Wall.  9 86- 

Bank  v.  Board,  90  Fed.  7 27,  43 

Bank  of  United  States  v.  Daniel,  12  Pet.  32 ....      9 

Bank  v.  Jolly's  Adm'rs,  18  How.  503 16 

Bank  v.  Knoop,  16  How.  369 I5.  45 

Bank  v.  Skelley,  i  Black.  436 53 

Bank  v.  Smith,  6  Wheat.  131 53 

Beauregarde  v.  New  Orleans,  18  How.  497 16 

Boyd  V.  Alabama,  94  U.  S.  645 16,  27,  43 

Bridge  Proprietors  z^.  Hoboken  Co.,  I  Wall.  116 53 

Bryan  v.  The  Board  of  Education,  151  U.  S.  639 53 

Burgess  v.  Seligman,  107  U.  S.  20 16 

Butz  V.  Muscatine,  8  Wall.  575    •    •        27,  3S 

Central  Land  Co  v.  Laidley,  159  U.  S.  102 86 

Chicago  V.  Robbins,  2  Black.  418 14 

Christy  v.  Pridgeon,  4  Wall.  196     ...        35 

City  V.  Lamson,  9  Wall.  477 27,  43 

County  of  Leavenworth  v.  Barnes,  94  U.  S.  70 16,  43 

County  V,  Douglas,  105  U.  S.  728 27,  43 

Davis  V.  Indiana,  94  U.  S.  494      i^ 

Debolt  z/.  Ohio  Life  &  Trust  Co. ,  I  Ohio,  564 45.46 

Douglas  V.  County  of  Pike,  loi  U.  S.  677 27,  40 

Dugger  V.  Bocock,  104  U.  S.  596 86 

East  Oakland  6/.  Skinner,  94  U.  S.  255 16 

Elmendorf  v.  Taylor,  10  Wheat.  159 -    7.  13.  ^9'  35 

V 


\  1  r.\i;i.i':  of  casks. 

rAcn 

I'.iirtu'M  :•.  Co.  of  Galatiii.  uxi  V.  .S.  41S 16 

I'.iriiUTs'  vS:  Mcchnnics'  Nal'l  Rk.  :■.  Smith,  6  Wlicat.  131 53 

l"orcii;uiv;h  :•.  R.  R.,  i::S  Ta.  217 14 

Gardner  :•.  Collins,  2  Pot.  5S 9 

Gclpcke  :'.  Dnbnciue,  i  Wall.  175 1,2,  etc. 

Gtxlcharle.s  z:  Wi^jcnuui,  113  I'a.  431 77 

Green  :•.  County  of  Couness,  109  U.  S.  104 ?7,  43 

Green  v.  Neil's  Lessee,  6  Pet.  291 9.  35 

Groves  z:  Slaughter,  15  Pet.  449 14 

Guildhall,  The,  58  Fed.  796 14 

Gut  :■.  The  State,  9  Wall.  35 16 

Hall  :'.  DcCuir,  95  U.  S.  485 16 

Harpending  r.  Dutch  Reformed  Church,  16  Pet.  455 9 

Havemeyer  f.  Iowa  Co.,  3  Wall.  294 27,  37 

Hill  :■.  Hite,  29  C.  C.  A.  549 43 

Huntingdon  :■.  Attrill,  146  U.  S.  657 53 

Inglis  z'.  Sailors'  Snug  Harbour,  3  Pet.  99 9 

Insurance  Co.  :-.  Mass.,  6  Wall.  611 16 

Insurance  Co.  Z'.  Debolt,  16  How.  416 46,  48,  50 

Jackson  r.  Chew,  12  Wheat.  162      8 

Jefferson  Branch  Bank  v.  Skelley,  i  Black.  436 53 

K.  and  others  r.  The  Dyke  Board  of  Niedervieland.    Decisions  of  the 

Reichsgericht  in  Civil  Causes,  Vol.  IX,  p.  233 6r 

Kennebec  River  Co.  v.  R.  R.,  14  Wall.  23 86 

I,ee  Co.  :■.  Rogers,  7  Wall.  181 27,  38 

I^ffingwell  V.  Warren,  2  Black.  599 24,  35 

Lehigh  Water  Co.  z/.  Easton,  121  U.  S.  388 86 

Lewisohn  Z'.  Steamship  Co.,  56  Fed.  603 16 

Liverpool  S.  S.  Co.  v.  Phoenix  Ins.  Co.,  129  U.  S.  397 14 

J^jeb  Z'.  Trustees  of  Ham.  Co.,  91  Fed.  37 27,43,88 

Louisiana  v.  Pilsbury,  105  U.  S.  278 27,  41 

lyouisville  T.  Co.  v.  Cincinnati,  76  Fed.  296 27,  43 

Louisville  &  Nashville  R.  R.  Co.  v.  Palmes,  109  U.  S.  244 53 

Louisville  Gas  Co.  z/.  Citizens' Gas  Co.,  115  U.  S.  683 53 


TABLE    OF    CASES.  Vll 

PAGE 

Marbury  v.  Madison,  I  Cr.  178 79 

McClung  V.  Silliman,  3  Pet.  270 9 

McCullough  V.  Com.  of  Va.,  172  U.  S.  102 i,  53,  88 

McKeen  v.  DeLancy's  Lessee,  5  Cr.  22 6,  12 

Mobile  &  Ohio  R.  R.  Co.  z/.  Tenn.,  153  U.  S.  487 •.    .    .    53 

Nesmith  v.  Sheldon,  7  How.  812 16 

New  Orleans  Water  Works  v.  La.  Sugar  Ref.  Co.,  125  U.  S.  19    .        .  86 

Nichols  V.  Levy,  5  Wall.  433 16 

Notley  V.  Buck,  8  Barn.  &  Cress.,  160 62 

Oakland  v.  Skinner,  94  U.  S.  255 16 

Ohio  Life  Ins.  &  Trust  Co.  v.  Debolt,  16  How.  416 46,  48,  50 

Olcott  V.  Supervisors,  16  Wall.  678 27 

Palmer  v.  Marston,  14  Wall.  10 86 

Pease  v.  Peck,  18  How.  599 54 

Pine  Grove  v.  Talcot,  19  Wall,  666 27,  39 

Piqua  Bank  v.  Knoop,  16  How.  369 15  >  45 

Polk's  Lessee  v.  Wendell,  5  Wheat.  293 7,  12 

Porterfield  v.  Clark,  2  How.  76 16 

Provident  Ins.  Co.  v.  Mass.,  6  Wall.  611 16 

Railroad  Co.  v.  Gaines,  97  U.  S.  697 16 

Railroad  Co.  v.  Georgia,  98  U.  S.  359 16 

Railroad  Co.  v.  Lockwood,  17  Wall.  357 14 

Railroad  Co.  v.  McClure,  10  Wall.  511 86 

Railroad  Co.  v.  Palmes,  109  U.  S.  244 53 

Railroad  Co.  v.  Rock,  4  Wall.  177 85 

Railroad  Co.  v.  Tenn.,  153  U.S.  487 53 

Randall  v.  Brigham,  7  Wall.  523 16 

Ray  V.  Gas  Co.,  138  Pa.  576 27,  42,  58 

Re  Jacobs,  98  N.  Y.  98 77 

Rice  V.  Railroad,  i  Black,  374 16 

Ross  V.  Duvall,  13  Pet.  45 9 

Ross  V.  McClung,  6  Pet.  283 9 

Sanbourne  v.  Co.  Comm'rs,  97  U.  S.  181 16 

Shelby  v.  Guy,  11  Wheat.  361 9,  35 

Shipp  V.  Miller's  Heirs,  2  Wheat.  315 6,  12 

South  Ottawa  v.  Perkins,  94  U.  S.  261 16,  27,  43 


VUI  r.Mil.K    0\-    CASES. 

PAGE 

State  r.  Gootlwill.  33  \V.  V;i.  179 77,  96 

State  of  lowo  ^.r  relalione  v.  Co.  of  Wapello,  13  Iowa,  3SS 2 

Stntc  Bank  of  Ohio  :•.  Knoop,  16  How.  369 15,  45 

Stone:-.  Wisconsin,  94  U.  S.  156 16 

Sturgis  :•.  CrowninshicUl,  .|  Wheal.  122 94 

Swift  f.  Tyson,  16  Pet.  i 11 

Taylor  :-.  Ypsilanti,  105  U.  S.  60 43 

The  City  :-.  Lamson,  9  Wall.  477 27,  43 

The  Guildhall,  58  Fed.  796 14 

Thompson  v.  Lee  Co.,  3  Wall.  327 27,  38 

Town  of  S.  Ottawa  v.  Perkins,  94  U.  S.  261 16,  27,  43 

Town  of  Venice  v.  Murdock,  92  U.  S.  494 14.  '6 

Township  of  Pine  Grove  :-.  Talcott,  19  Wall.  666 27,  39 

Union  Bank  f.  Board,  90  Fed.  7 27,  43 

Union  Bank  of  Tenn.  :-.  Jolly's  Adm'rs,  18  How.  503 16 

United  States  e/.  Morrison,  4  Pet.  124 9 

United  States  Bank  v.  Daniel,  12  Pet.  32 9 

University  v.  The  People,  99  U.  S.  309 53 

Van  Rensselaer  v.  Kearney,  11  How.  297 16 

Venice  v.  Murdock,  92  U.  S.  494 I4>  16 

Walker  :-.  State  Harbor  Comm'rs,  17  Wall.  648 35 

Ware  z^.  Knowlton,  3  Dall.  199 78 

Watson  z/.  Tarpley,  iS  How.  517 14 

Webster  v.  Cooper,  14  How.  488 ....      16,  36 

Williams  v.  Bruflfy,  96  U.  S.  176 9^ 

Williamson  v.  Berry,  8  How.  495 16 

Wilson  V.  Mason,  i  Cr.  24 12 

Wilson  t;.  Perrin,  II  C.  C.  A.  66 43 

Winthrop  v.  Lechmere 9^ 

Wright  z/.  Nagle,  loi  U.  S.  791 53 


TEXT-WRITERS   REFERRED  TO. 


PAGK 

Austin,  John,  "Jurisprudence" 63 

Eattle,  Hon.  Kemp.  P.,  Address  Before  the  North  Carolina  Bar  ...    78 

Blackstone's  Commentaries, 62 

Bowyer,  "  Readings  Before  the  Middle  Temple  " 63 

Cooley,  "Principles  of  Constitutional  Law " 20,  23,  48 

Qooley,  "  Federal  Limitations  " 19 

•Constitution  of  the  United  States 18 

Coxe,  Brinton,  "Judicial  Power  and  Unconstitutional  Legislation" 

71.  75,  92 

Elliot's  Debates,  Vol.  IV 79 

Elliot's  Debates,  Vol.  V 69,  70,  71,  72,  73,  74,  75,  76 

Hamilton,  Alexander,  "The  Federalist " 18,80 

Hare,  Hon.  J.  I.  Clark,  "American  Constitutional  Law  "   ....      24,  39 

Hobbes,  cited  in  "Austin's  Jurisprudence  " 63 

Hornblower,  William  B.,  in  American  Law  Review 23 

Locke,  "Of  Parliament"      62 

McMurtrie's  Observations 79 

Merlin's  Repertoire 61 

Patterson,  Prof.  C.  S.,  "  Federal  Restraints  " 23 

Pepper,   Prof.  George  W.,   "The  Borderland  of  Federal  and  State 

Decisions" 6,  23 

Rand,  William  H.,  Jr.,  in  Harvard  Law  Review 23 

Reed,  Hon.  Henry,  "The  Rule  in  Gelpcke  v.  Dubuque,"  in  Harvard 

Law  Review 22 

Reno,  Conrad,  in  American  Law  Review 23 

Story,  "  On  the  Constitution  " 23 

Taylor,  Hannis,  "The  Origin  and  Growth  of  the  English  Constitu- 
tion " 59 

Thayer,  Prof.  J.  B.,  "The  Case  of  Gelpcke  v.  Dubuque,"  in  Harvard 

Law  Review 22 

Vincent,  J.  M.,  "State  and  Federal  Government  in  Switzerland"  .    .    62 

ix 


SOMK    RECENX   CRITICISM 

OF 

GELPCKE  VERSUS   DUBUQUE. 


Introductory. 

At  the  very  beginning  of  his  study  of  the  law,  the  atten- 
tion of  the  writer  was  attracted  to  the  famous  case  of  Gelpcke 
V.  Dubuque}  through  the  medium  of  a  club  argument. 

He  noticed  that  writs  of  error  to  state  courts  had,  in 
similar  cases,  never  been  permitted  by  the  Supreme  Court  of 
the  United  States,  and  felt  that  something  was  wrong,  which 
permitted  so  inconsistent  a  result  to  be  reached,  i.  e.,  that 
federal  courts  would  reverse  or  disregard  state  decisions, 
where  diverse  citizenship  gave  jurisdiction,  and  refuse  to 
assume  jurisdiction,  when  such  cases  applied  for  admission 
from  the  highest  court  of  a  state. 

As  a  result  of  these  thoughts,  the  writer  carried  in  his 
mind  a  half-formed  purpose  to  go  deeper  into  the  subject, 
should  opportunity  offer :  a  purpose  which  might  never  have 
been  realized  had  it  not  been  for  some  very  recent  decisions 
of  the  Supreme  Court  of  the  United  States,  which  seem  to 
recognize  the  inconsistency  of  the  two  positions  assumed  by 
that  court,  and  give  him  courage  to  reopen  a  much-vexed 
question,  knowing  that  however  poorly  his  efforts  may  be  re- 
warded, he  can  scarcely  leave  the  controversy  in  a  worse 
condition  than  it  now  is.  The  case  oi  McCullough  v.  The 
Commonwealth  of  Virginia^  must  serve  as  an  apology  for 
adding  another  paper  to  the  long  list  of  articles,  which  have 
treated  of  the  question  involved  in  Gelpcke  v.  Dubuque. 

1  Wall,  175. 

'''  172  U.  S.  102  (Dec,  1898). 


SOMF.  KKCKNT  CRITICISM  OF 


Section  L— S  lA  TllMHM'  OF    11  IK  CASK. 

The  case  of  (7f//>ri-f  v.  Ditbidjuc '  was  brought  into  the 
Supreme  Court  oS.  the  Unitctl  States  by  writ  of  error  to  the 
Circuit  Court  for  the  District  of  Iowa. 

By  acts  passed  in  1847,  185 1  and  1857,  the  legislature 
had  authorized  the  City  of  Dubuque  to  issue  certain  bonds 
for  the  purpose  of  raising  money  to  assist  in  the  construction 
of  a  railroad.  These  bonds,  the  acts  declared,  were  legal 
and  vahd  and  "  neither  the  City  of  Dubuque,  nor  any  of  the 
citizens,  shall  ever  be  allowed  to  plead  that  the  said  bonds  are 
invalid."  These  acts  were  duly  passed  upon  by  the  Supreme 
Court  of  Iowa,  which,  during  a  period  of  six  years  and  by 
seven  different  decisions,  declared  the  said  acts  to  be  legal  and 
binding. 

Thereafter  certain  of  the.se  bonds  came  for  a  valuable  con- 
sideration into  the  hands  of  the  plaintiff. 

After  this  transaction  the  Supreme  Court  of  Iowa  declared 
the  acts  giving  authority  for  the  issuance  of  the  bonds  to  be 
unconstitutional.-  This  decision,  obviously,  overruled  the 
seven  previous  decisions. 

The  City  of  Dubuque  having  failed  to  pay  the  coupons, 
when  presented,  the  plaintiff  brought  suit  in  the  Circuit  Court 
of  the  United  States,  by  virtue  of  the  diverse  citizenship  of 
the  parties.  The  city  pleaded,  inter  alia,  that  the  acts  author- 
izing the  issue  of  the  bonds  in  question  were  unconstitutional 
and  void,  relying  on  the  case  of  Iowa  v.  County  of  Wapello? 

It  is  not  proposed  at  this  point  to  go  into  the  principles  of 
the  decision,  nor  into  the  correctness  of  the  views  advanced. 
Suffice  it  for  the  present,  to  say  that  the  Circuit  Court  having 
adjudged  for  the  defendant,  feeling  itself  bound  by  the  de- 
cision of  the  state  court,  the  United  States  Supreme  Court 
reversed  the  decision  and  sent  the  case  back  for  further  pro- 
ceedings. 

While  commentators  and  judges  differ  as  to  the  reasons 
which  were  in  the  mind  of  the  court,  this  much,  at  least,  is 

>  I  Wall,  17,5- 

»  State  of  Iowa  ex  relatione  v.  The  County  of  Wapello,  13  Iowa,  388. 

'  Supra. 


GELPCKE  VERSUS  DUBUQUE,  3 

certain  :  The  Supreme  Court  disregarded  the  decision  of  the 
State  Court  of  Iowa,  which  declared  the  bonds  void,  and  held 
them  to  be  valid. 

In  addition,  it  maybe  mentioned  that  the  State  Constitution 
had  been  unchanged  from  the  time  of  the  passage  of  the  acts 
authorizing  the  issuance  of  the  bonds.  Also  that  it  was 
assumed  that  the  compliance  with  the  terms  of  the  acts  was 
perfectly  regular. 

Mr.  Justice  Swayne  delivered  the  judgment  of  the  court  in 
a  short  opinion,  which  has  given  rise  to  much  criticism  on 
account  of  some  rather  unfortunate  expressions  which  that 
learned  justice  permitted  to  escape  him.  Mr.  Justice  Miller 
dissented  with  no  uncertain  voice  in  an  opinion  which  has 
become  famous  as  the  foundation  of  the  arguments  of  the 
opponents  of  Gelpcke  v.  Dubuque. 

Section  II.— THE   PRINCIPLE  UPON  WHICH  THE  CASE 
WAS  DECIDED. 

The  only  undisputed  point  decided  in  Gelpcke  v.  Dubuque 
was  that  the  bonds  held  by  the  plaintiff  were  valid,  in  the  face 
of  a  state  decision  adjudging  them  void. 

Many  different  reasons  have  been  assigned  as  being  the 
basis  of  the  court's  decision.  These  reasons  have,  in  most 
instances,  been  advanced  by  the  writers  who  intended  later  to 
demolish  them,  consequently  they  have  not  been  uniformly 
accepted  as  laying  down  sound  rules  of  law. 

The  question  is,  why  did  the  Supreme  Court,  since  they 
professed  to  be  administering  the  law  of  the  state,  feel  at  lib- 
erty to  disregard  a  state  decision,  adjudging  these  bonds  void? 
It  is  the  purpose  of  this  section  to  answer  that  question. 
Before  doing  so,  we  wish  to  lay  the  ground  by  proving  that 

A.  The  federal  courts  are  bound  absolutely  to  accept  the  state 
courts'  construction  of  state  statutes. 

The  rule  of  law  as  above  laid  down  is  one  very  familiar  to 
every  student  of  constitutional  law.  We  believe  the  truth  of 
the  principle  has  never  been  directly  disputed.     Various  text 


SOMK  KlX'l'.M"  CKiriClSM  OF 


writcrs  have  liazardcil  tlic  idea,  however,  that  in  particular 
cases  tleahiii;  with  contracts,  because  the  court  thou<;ht  that 
injustice  wouKl  otlicrwisc  bo  workctl.  it  has  felt  at  Hbcrty  to 
engraft  exceptions  upon  it. 

Professor  Pepper  has  admirably  treated  the  whole  contro- 
versy between  federal  and  state  decisions  in  his  little  book, 
"  The  Pmrder  Land  of  P^ederal  and  State  Decisions."  He 
says  that  the  Supreme  Court,  because  of  some  fancied  super- 
vision over  contract  rights,  have  broken  through  the  rule  in 
some  instances. 

It  is  submitted  that  while  in  very  many  cases  expressions 
have  been  let  fall  by  the  courts,  which  seem  to  justify  such 
an  observation,  yet  that  those  decisions  are  really  founded 
upon  a  principle  which  docs  not  in  any  way  throw  discredit 
upon  the  rule  as  above  laid  down.  We  hope  to  be  able  to 
show,  not  only  on  principle,  but  by  authority,  that  in  no  in- 
stances are  the  federal  courts  at  liberty  to  go  to  the  length  of 
foisting  a  law  of  their  own  construction  upon  a  sovereign 
state.  The  establishment  of  this  principle  is  so  essential  to 
the  reasoning  that  follows,  that  a  rather  extended  investiga- 
tion may  perhaps  be  permitted. 

For  a  full  discussion  of  the  conflict  between  federal  and 
state  decisions,  we  cannot  do  better  than  to  refer  to  Professor 
Pepper's  book,  mentioned  above.  It  may  not  be  amiss,  how- 
ever, to  briefly  recapitulate  the  general  principles,  in  order  to 
prepare  the  way  for  a  more  detailed  examination  in  the  case 
of  statutory  construction. 

The  circuit  courts  of  the  United  States  were  primarily 
established,  that  an  impartial  tribunal  might  be  provided, 
wherein  citizens  of  different  states  might  obtain  justice,  un- 
biased by  the  influences  surrounding  the  state  courts.  These 
courts,  therefore,  were  to  administer  the  laws  of  the  state  in 
which  they  were  sitting,  and  not  to  expound  it  for  themselves; 
but  this  rule,  while  strictly  true  as  above  stated,  requires  a 
further  explanation.  By  "  laws  of  the  state  "  in  this  sense 
are  meant  laws  purely  local  in  their  character.  Laws  origin- 
ated by  the  state,  and  peculiar  to  it,  as  opposed  to  general 
laws,  which    may  have   been   adopted   and   applied   by   state 


GELPCKE  VERSUS  DUBUQUE.  5 

courts.  These  two  classes  of  laws  were  early  distinguished 
and  will  be  incidentally  referred  to  in  tracing  the  growth  of 
the  principle  involved. 

(a)  Where  the  law  was  essentially  a  law  of  the  state,  deriv- 
ing its  validity  from  the  state,  and  applied  peculiarly  within  it. 

(b)  Where  the  law  was  a  general  one,  equally  applicable  to 
all  the  states  unless  altered  by  legislation. 

In  the  former  case  it  is  perfectly  plain  that  the  state  law  is 
binding  on  the  federal  courts,  when  they  profess  to  be  admin- 
istering the  law  of  the  state.  In  the  second  case,  although 
the  rule  is  well  settled,  the  principle  is  not  quite  so  plain. 

On  the  one  hand,  it  is  contended  that  whether  the  law 
originated  within  or  without  the  state,  if  it  has  been  adopted 
by  the  state  tribunals,  and  applied  within  the  limits  of  their 
jurisdiction,  it  becomes  a  law  of  the  state,  just  as  much  in  the 
latter  case  as  in  the  former ;  that  the  law  as  thus  construed  is 
just  as  binding  within  the  state,  and  should  be  as  conclusive 
on  the  federal  courts,  as  though  it  were  a  positive  statutory 
enactment. 

On  the  other  hand,  it  is  admitted  that  where  a  law  is  pro- 
mulgated by  the  state,  either  by  legislative  enactment  or  by 
virtue  of  local  real-property  rules,  the  state  court  is  the  ulti- 
mate judge  of  its  meaning  and  construction.  In  such  a  case, 
it  is  said,  the  court  has  the  authority  to  declare,  as  a  finality, 
what  the  law  is.  Its  judgment  is  not  open  to  question  by 
any  other  court  in  existence.  But  it  is  otherwise  if  the  state 
court  passes  upon  the  meaning  of  a  general  law.  Here  it  has 
no  especial  authority  to  interpret.  It  may  declare  its  opinion, 
which  is  binding  within  the  state,  but  not  upon  courts  having 
concurrent  jurisdiction.  In  the  one  case  the  state  court  an- 
nounces what  the  law  is.    In  the  other  it  expresses  its  opinion. 

As  will  be  noticed  from  an  examination  of  the  cases,  the 
courts  have  adopted  the  latter  view.  This  position  has  been 
the  mark  of  much  criticism  by  text  writers.  We  do  not  feel 
competent  to  express  an  opinion,  knowing  that  to  do  so  would 
be  to  oppose  at  least  some  eminent  writers,  who  seem  not 
always  to  agree.  As  this  paper  concerns  only  a  particular 
branch  of  the  local  law,  it  is  not  necessary  to  continue  further 


6  SOMli  KlXl-.NT  CKH1CISM  OF 

this  pliase  of  the  discussion.'  Whether  the  federal  courts  are 
justified  in  refusing  to  follow  in  cases  involving  questions  of 
general  law,  cannot  affect  the  point  w  hich  it  is  here  proposed 
to  establisli,  as  we  shall  confine  the  discussion  to  cases  in- 
volving the  interpretation  of  state  statutes.  As  will  be  shown 
later,  the  interpretation  becomes  a  part  of  the  statute,  so  that 
the  federal  courts  are  no  more  at  liberty  to  disregard  it,  than 
they  are  to  disregard  the  positive  statutory  enactment.  A 
federal  court  may,  for  constitutional  reasons,  refuse  to  apply  a 
state  law  as  construed  by  a  state  court,  but  the  federal  court 
must  follow  the  state  interpretation. 

One  of  the  earliest  cases  to  lay  down  this  rule  was  McKcen 
v.  DeLancys  Lessee^-  in  which  Mr.  Chief  Justice  Marshall  de- 
clared that  while  Ids  construction  of  a  Pennsylvania  statute 
under  consideration  would  differ  from  the  one  given  to  it 
by  the  Supreme  Court  of  Pennsylvania,  yet  he  considered 
himself  bound  to  follow  the  state  construction,  saying :  that 
if  a  contrary  rule  were  adopted,  "infinite  mischief  would 
result." 

The  same  principle  was  again  recognized  in  1817,  in  the 
case  of  Shipp  v.  Miller  s  Heirs?  Mr.  Justice  Story,  delivering 
the  opinion,  says,  referring  to  a  decision  of  the  Kentucky  Su- 
preme Court,  "  this  is  a  decision  upon  a  local  law,  which 
forms  a  rule  of  property,  and  this  court  has  always  held  in 
the  highest  respect  decisions  of  state  courts  on  such  subjects. 
We  are  satisfied  it  is  a  reasonable  interpretation  of  the  statute, 
and  upon  principle  or  authority  we  see  no  ground  for  drawing 
it  into  doubt." 

It  will  be  noticed  that  the  language  of  the  eminent  justice 
was  here  not  so  clear  and  decided,  as  will  be  shown  in  later 
cases.  He  declares  that  the  Supreme  Court  accepts  the  state 
construction,  both  because  the  state  is  entitled  to  construe  her 
own  laws,  and  because  the  construction  was  "  reasonable." 
The  language  of  the  same  judge  in  later  cases  shows  that  he 
adopted  the  view  that  the  federal  court  was  bound  to  follow 

'  See  "The  Borderland  of  Federal  aud  State  Decisions," 

*  5  Cr.  22  (1809). 

*  2  Wheat.  315  (1817). 


GELPCKE  VERSUS  DUBUQUE.  7 

and  adopt  local  state  laws,  both  as  to  the  act  itself,  and  its 
construction,  whether  reasonable  or  not. 

The  next  important  case  was  PoWs  Lessee  v.  Wendell}  in 
which  a  question  arose  as  to  the  construction  of  a  property 
right  by  the  court  of  Tennessee.  The  court  say,  "We  will 
respect  the  decisions  of  the  local  tribunals,  but  there  are 
limits  which  no  court  can  transcend."  This  language 
sounds  as  if  the  learned  justice  intended  to  arrogate  to 
the  United  States  court  the  ultimate  construction  of  a  local 
law,  if  they  were  of  the  opinion  that  the  Umits  had  been 
"transcended."  However,  the  remark  is  deprived  of  some  of 
its  force  by  the  next  sentence,  "  But  the  courts  of  Tennessee 
have  not  so  decided."  Mr.  Justice  Johnson,  who  delivered 
the  opinion,  seemed  to  be  a  little  fearful  of  committing  himself 
openly  to  the  doctrine  that  the  federal  courts  are  compelled 
to  follow  in  all  cases  of  local  law. 

However,  all  doubt  was  set  at  rest  by  the  next  decision, 
delivered  in  1825,  when  the  court  definitely  and  clearly  an- 
nounced its  inability  to  interpret  state  laws.  This  was  the 
case  of  Elmendoff  v.  Taylor}  which  was  an  appeal  from  the 
Circuit  Court  of  Kentucky.  A  bill  in  equity  was  brought  to 
compel  a  conveyance  of  land.  The  defendants  relied  upon 
their  patent.  The  plaintiff  relied  upon  his  entry,  and  to  sub- 
stantiate it,  upon  certain  acts  of  the  legislature,  by  virtue  of 
which  he  contended  he  had  a  good  title.  The  construction 
of  these  acts  was  one  of  the  questions  at  issue.  The  court 
decided  that  the  construction  given  by  the  Supreme  Court  of 
the  state  was  binding  upon  them.  Chief  Justice  Marshall 
delivered  the  opinion  of  the  court.  On  page  159  he  says: 
"  This  court  has  uniformly  professed  its  disposition,  in  cases 
depending  on  the  laws  of  a  particular  state,  to  adopt  the  con- 
struction which  the  courts  of  the  state  have  given  to  those 
laws.  This  course  is  founded  on  the  principle,  supposed  to 
be  universally  recognized,  that  the  judicial  department  of 
every  government,  where  such  department  exists,  is  the  ap- 
propriate organ  for  construing  the  legislative  acts  of  that  gov- 


*  5  Wheat.  293  (1820). 
=>  10  Wheat.  159  (1825). 


8  SOMK  KKCKNT  CRITICISM  OF 

eminent.  Thus  no  court  in  the  universe,  which  professed  to 
be  f^overned  by  principle,  would,  we  presume,  undertake  to 
say  that  the  ccnirts  of  Great  liritaiu.  or  of  h^ance,  or  of  any 
other  nation,  liail  misunderstood  their  own  statutes,  and  there- 
fore erect  itself  into  a  tribunal  which  should  correct  such  mis- 
understandint;.  We  receive  the  construction  given  by  the 
courts  of  the  nation  as  the  true  sense  of  the  law,  and  feel 
ourselves  no  more  at  liberty  to  depart  from  that  construction 
than  to  depart  from  the  words  of  the  statute." 

As  far  as  we  are  aware,  this  was  the  first  decision  to  lay 
down  this  rule  in  so  definite  and  unqualified  a  manner.  The 
language  of  the  court  was  here  capable  of  perhaps  even 
broader  application  than  later  decisions  approve,  but  while  its 
scope  may  have  been  narrowed,  its  soundness  has  never  been 
questioned.  Two  years  later  (1827)  the  now  well-settled 
principle  that  the  federal  courts  are  bound  to  follow  local 
laws  of  real  property,  even  though  they  do  not  depend  on 
statute  law,  was  definitely  expressed.  This  was  in  the  case  of 
Jackson  v.  Chnu}  The  case  came  up  on  a  writ  of  error  to 
the  Circuit  Court  for  the  Southern  District  of  New  York.  It 
involved  a  dispute  over  the  meaning  of  a  clause  in  a  will.  As 
was  pointed  out  by  Mr.  Justice  Thompson,  in  delivering  the 
opinion  of  the  court,  the  law  of  New  York  had  been  firmly 
settled  on  that  point.  The  court  felt  bound  to  follow  the  in- 
terpretation put  upon  these  words  by  the  state  court,  and 
rested  their  decision  on  that  ground.  It  was  contended  in  the 
argument  that  the  rule  that  the  federal  courts  are  bound  to 
follow  the  state  courts,  applies  only  to  cases  of  constructions 
of  state  statutes  or  constitutions.  Thq  court,  however,  while 
admitting  most  of  the  decided  cases  to  be  of  that  nature,  say, 
"  But  the  same  rule  has  been  extended  to  other  cases,  and 
there  can  be  no  good  reason  assigned  why  it  should  not  be, 
when  it  is  applying  settled  rules  of  property.  This  court 
adopts  the  state  decisions,  because  they  settle  the  law  appli- 
cable to  the  case,  and  the  reasons  assigned  for  this  course 
apply  as  well  to   rules   of  construction   growing   out  of  the 

'  12  Wheat.  162  (1827). 


GELPCKE  VERSUS  DUBUQUE.  9 

common  law,  as  the  statute  law  of  the  state,  when  applied  to 
the  title  of  lands."  This  case  also,  it  will  be  noted,  recognizes 
the  rule  as  well  settled  in  cases  involving  statutory  construc- 
tion. It  is  cited  as  of  interest  in  tracing  the  development  of 
the  principle  under  discussion. 

During  the  fifteen  years  following  Jackson  v.  Chew,  no  less 
than  eight  well-considered  cases  unqualifiedly  affirmed  the 
principles  expounded  in  Elmendorf  v.  Taylor) 

The  principle  is  so  well  and  so  emphatically  laid  down  in 
Green  v.  Neil's  Lessee  ^  that  the  case  is  here  stated,  though  it 
will  be  again  touched  upon  later.  Green  v.  Neil  came  to  the 
Supreme  Court  by  a  writ  of  error  to  the  Circuit  Court  of  the 
United  States,  for  the  District  of  West  Tennessee.  It  was  an 
action  of  ejectment.  The  defendant  claimed  title  by  limita- 
tion. The  plaintiff  disputed  his  claim,  not  on  a  question  of 
the  facts,  which  were  admitted,  but  on  a  question  of  construc- 
tion of  the  Tennessee  statute  of  limitations.  Some  years  prior 
to  the  suit  in  question,  a  construction  favorable  to  this  plaintiff 
had  been  adopted  by  the  Supreme  Court  of  Tennessee,  and 
followed  by  the  Supreme  Court  of  the  United  States.  The 
Circuit  Court  felt  bound  to  follow  these  decisions,  and  directed 
a  verdict  for  the  plaintiff,  which  was  the  cause  of  error  assigned. 
The  Supreme  Court  of  Tennessee  had,  subsequent  to  the  above 
mentioned  decision,  reversed  its  previous  ruling  and  adoped  a 
construction  of  the  statute  of  limitations  which  was  favorable 

1  Shelby  v.  Guy,  ii  Wheat.  361  (1826),  Johnson,  J.,  "That  the  statute 
law  of  the  states  must  furnish  the  rule  of  decision  to  this  court,  .  .  . 
no  one  doubts;"  Gardner  v.  Collins,  2  Pet.  58  (1829),  Story,  J.  ;  Mc- 
Clung  V.  Silliman,  3  Pet.  270  (1830),  M'lvean,  J.,  "The  state  construc- 
tion is  the  law  of  the  forum  ;"  United  States  v.  Morrison,  4  Pet.  124 
(1830),  Marshall,  C.  J.  ;  Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  99  (1830), 
Thompson,  J.;  Ross  v.  M'Clung,  6  Pet.  283  (1832),  Marshall,  C.  J., 
"The  questions  which  grow  out  of  the  language  of  the  act,  so  far  as  they 
have  been  settled  by  judicial  decisions  (raferring  to  state  decisions), 
cannot  be  disturbed  by  this  court;"  Green  v.  Neil's  Lessee,  6  Pet.  291 
(1832),  M'Lean,  J.  ;  Bank  of  United  States  v.  Daniel,  12  Pet.  32  (1838), 
Catron,  J.  ;  Ross  v.  Duvall,  13  Pet.  45  (1839),  M'Lean,  J.  ;  Harpending 
V.  Dutch  Reformed  Church,  16  Pet.  455  (1842),  Catron,  J.  ;  (only  the 
principal  cases  which  we  have  examined  are  cited.  They  may  not  in- 
clude all  the  cases  decided  during  this  period  which  bear  on  the  question). 

^  Supra. 


lO  SOMK   KIXKNT  CRITICISM  OF 

to  the  dcfciitiant  in  this  case.  On  this  writ  of  error  the  Su- 
preme Court  o(  the  United  States  declarctl  itself  bound  to 
adopt  the  hist  construction  put  upon  the  statute  by  the  state 
court,  reversed  its  own  decisions  and  sent  the  case  back  for  a 
new  trial.  Mr.  Justice  McLean,  for  tlie  court,  says  (star  p. 
29S):  "  Tlie  same  reason  which  influences  this  court  to  adopt 
the  construction  given  to  the  local  law,  in  the  first  in.stance,  is 
not  less  strong  in  favor  of  following  it  in  the  second,  if  the 
state  tribunals  should  change  the  construction.  A  reference 
is  here  made  not  to  a  single  adjudication,  but  to  a  series  of 
decisions  which  shall  settle  the  rule.  Are  not  the  injurious 
effects  on  the  interests  of  the  citizens  of  a  state,  as  great  in 
refusing  to  adopt  the  change  of  construction,  as  in  refusing  to 
adopt  the  first  construction  ?  A  refusal  in  the  one  case,  as 
well  as  in  the  other,  has  the  effect  to  establish  in  the  state  two 
rules  of  property. 

"  Would  not  a  change  of  construction  in  a  law  of  the  United 
States,  by  this  tribunal,  be  obligatory  on  the  state  courts? 
The  statute  as  last  expounded  would  be  the  law  of  the  Union  ? 
and  why  may  not  the  same  effect  be  given  to  the  last  exposi- 
tion of  a  local  law  by  the  state  court?  T/ie  exposition  forms  a 
part  of  the  local  law,  and  is  binding  on  all  the  people  of  the 
state,  and  its  inferior  judicial  tribunals.  It  is  emphatically  the 
law  of  the  state,  which  the  federal  court,  while  sitting  within 
the  state,  and  this  court,  when  a  case  is  brought  before  them, 
is  called  to  enforce.  If  the  rule  as  settled  should  prove  incon- 
venient or  injurious  to  the  public  interests,  the  legislature  of 
the  state  may  modify  the  law  or  repeal  it. 

''If  the  co7istr7iction  of  the  highest  judicial  ti'ibiinal  of  the 
state  form  a  part  of  its  statute  law,  as  much  as  an  enactment  of 
the  legislature,  hozv  can  this  court  make  a  distinction  between 
tliem  ?  There  could  be  no  hesitation  in  so  modifying  our 
decisions  as  to  conform  to  any  legislative  alteration  in  a 
statute;  and  why  should  not  the  same  rule  apply  where  the 
judicial  branch  of  the  state  government,  in  the  exercise  of  its 
acknowledged  functions,  should  by  construction  give  a  dif- 
ferent effect  to  a  statute,  from  what  had  at  first  been  given  to 
it.     The   charge  of  inconsistency  might  be   made  with   more 


GELPCKE  VERSUS  DUBUQUE.  I  I 

force  and  propriety  against  the  federal  tribunals  for  a  disre- 
gard of  this  rule,  than  by  conforming  to  it.  They  profess  to 
be  bound  by  the  local  law,  and  yet  they  reject  the  exposition 
of  that  law,  which  forms  a  part  of  it.  It  is  no  answer  to  this 
objection  that  a  different  exposition  was  formerly  given  to  the 
act  which  was  adopted  by  the  federal  court.  The  inquiry  is, 
what  is  the  settled  law  of  the  state  at  the  time  the  decision  is 
made  ?  This  constitutes  the  rule  of  property  within  the  state, 
by  which  the  rights  of  litigant  parties  must  be  determined." 

It  will  be  noted  that  this  case  puts  a  state  court's  construc- 
tion of  state  laws  upon  the  same  plane  as  the  statute  itself. 
Each  is  equally  conclusive  as  to  what  is  the  law  of  the  state. 
It  follows,  therefore,  that  a  federal  court  cannot  disregard  the 
former  any  more  than  it  can  the  latter  when  it  is  administering 
state  law. 

Up  to  this  point  the  courts  have  applied  this  doctrine  gen- 
erally to  the  law  of  the  state,  without  going  into  distinctions 
as  to  what  is,  and  what  is  not,  local  law.  However,  in  1842, 
the  famous  case  oi  Swift  v.  Tyson^  was  decided,  which  limited 
the  rule  in  terms  to  statute  law  and  local  laws  of  real  property. 
That  case  came  up  on  a  writ  of  error  to  the  Circuit  Court  for 
the  District  of  New  York.  It  was  an  action  on  a  bill  of  ex- 
change. The  question  certified  to  the  Supreme  Court  for 
decision  was  whether  the  plaintiff,  who  had  received  a  note  in 
payment  of  a  pre-existing  debt,  was  a  holder  for  value.  The 
earlier  decisions  of  the  Supreme  Court  of  New  York  seemed 
to  decide  that,  under  such  circumstances,  he  was.  Later  de- 
cisions oscillated  to  some  extent,  but  seemed  to  return  at  the 
last  to  the  original  view.  The  question  then  arose  as  to  whether 
the  United  States  Court  would  follow  the  New  York  view  of 
the  law.  Waiving  the  question  as  to  whether  the  rule  was 
actually  settled  in  the  New  York  courts,  Mr.  Justice  Story 
declared  that,  for  the  purposes  of  this  case,  the  point  was  of 
no  vital  importance  because,  at  any  rate,  the  United  States 
courts  were  not  bound  by  the  decisions  of  the  New  York 
courts.      He   pointed   out   that   the  decision   of  this  question 

1  16  ret.  I  (1842),  Story,  J. 


1-  SOM1-:   KIX'KNT  IKIIICISM   OF 

involvcil  no  statute  or  local  law  of  New  York.  That  it  was 
piircl\-  a  case  to  be  ileciiled  on  principles  of  general  commer- 
cial law.  That  such  IkuI  been  the  view  of  the  New  York- 
courts  in  niulerin.ij;  their  decisions.  They  did  not,  and  could 
not,  claim  any  authority  so  to  .settle  a  question  of  general  law 
as  to  bind  the  courts  of  the  United  States. 

Prof.  George  Wharton  Pepper,  in  his  work  entitled  "  The 
Border  Land  of-  Federal  and  State  Decisions,"  has  very  se- 
verely criticized  the  opinion  of  Mr.  Justice  Story  in  this  case. 
Professor  Pepper  points  out,  among  other  things,  that  it  was 
the  intention  of  the  founders  of  the  Constitution  for  the  federal 
courts  in  such  cases  to  administer  solely  the  laws  of  the  state. 
That  they  were  not,  in  any  sense,  to  investigate  the  law  for 
themselves,  but  to  devote  their  whole  energy  to  an  effort  to 
discover  what  the  law  of  the  state  might  be.  There  can  be  no 
doubt  of  the  correctness  of  this  statement.  It  is  respectfully 
suggested,  however,  that  Szvif/  v.  Tj'son  does  not  necessarily 
contradict  that  intention.  It  does  not  deny  the  duty  of  the 
federal  courts  to  follow  the  state  courts'  construction  of  laws 
peculiarly  state  laws.  What  it  does  decide  is,  that  general 
commercial  law  is  not  state  law.  Whether  the  founders  of 
the  Constitution  intended  to  make  that  distinction,  or  whether 
they  could  have  realized  its  importance  at  that  time,  had  it 
been  brought  before  them,  may,  perhaps,  be  disputed. 

As  the  discussion  of  this  and  similar  decisions  is  only  inci- 
dental to  the  line  of  argument  in  this  paper,  it  is  not  proposed 
to  go  into  this  case  on  principle. 

Apropos  of  Professor  Pepper's  suggestion  as  to  the  early 
views  of  the  functions  of  the  Supreme  Court,  however,  it  is 
interesting  to  note  that,  in  the  earlier  cases  which  we  find  re- 
ported, the  judges  do  not  seem  to  be  at  all  sure  that  they  are 
absolutely  bound  to  follow  the  state  courts,  though  they 
profess  the  "highest  respect"  for  their  judgment.^  Indeed, 
Professor  Pepper,  himself,  points  out  a  very  early  case,  Wilsoti 
v.  Mason;  in  which  the  principle  seems  to  be  not  admitted. 

'  See  M'Keen  v.  DeLancy's  Lessee  (1809)  ;    Shipp  v.  Miller's  Heirs 
(1817)  ;  Polk's  Lessee  v.  Wendell  (1820)  ;  Supra,  pp.  6,  7. 
*  I  Cr.  24. 


GELPCKE  VERSUS  DUBUQUE.  I  3 

It  was  not  until  the  case  oi Elmendorf  v .  Taylor^  (1825),  that 
the  court  definitely  declared  the  doctrine  to  be  settled. 

As  the  opinion  in  Swift  v.  Tyson  contains  a  clear  exposition 
of  the  duty  of  the  court  to  adopt  state  decisions  in  cases  in- 
volving strictly  local  law,  we  insert  here  an  extract  from  it : 
"  It  is  observable  that  the  courts  of  New  York  do  not  found 
their  decisions  upon  this  point  upon  any  local  statute,  or  posi- 
tive fixed  or  ancient  local  usage  ;  but  they  deduce  the  doctrine 
from  the  general  principles  of  commercial  law.     It  is,  however, 
contended  that  the  thirty-fourth  section  of  the  Judiciary  Act  of 
1789,  c.  20,  furnishes  a  rule  obHgatory  upon  this  court  to  follow 
the  decisions  of  the  state  tribunals  in  all  cases  to  which  they 
apply.     That  section  provides  'that  the  laws  of  the  several 
states,  except  where  the  Constitution,  treaties  or  statutes  of 
the  United  States  shall  otherwise  require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials  at  common  law  in  the 
courts  of  the  United  States  in  cases  where  they  apply.'     In 
order  to  maintain  the  argument,  it  is  essential,  therefore,  to 
hold  that  the  word  '  laws  '  in  this  section  includes  within  the 
scope  of  its  meaning  the  decisions  of  the  local  tribunals.     In 
the  ordinary  use  of  language  it  will  hardly  be  contended  that 
the  decisions  of  courts  constitute  laws.      They  are  at  most  only 
evidence  of  what  the  laws  are  ;  and  are  not  of  themselves  laws. 
They  are  often  re-examined,  reversed   and   qualified  by  the 
courts  themselves,  whenever  they  are  found  to  be  either  de- 
fective or  ill-founded,  or  otherwise  incorrect.     The  laws  of  a 
state    are    more    usually  understood   to   mean   the  rules  and 
enactments  promulgated  by  the  legislative  authority  thereof, 
or  long  established  local  customs  having  the  force  of  laws. 
In  all  the  various  cases  which  have  hitherto  come  before  us 
for  decision,  this  court  have  uniformly  supposed  that  the  true 
interpretation  of  the  thirty-fourth  section  limited  its  application 
to  state  laws  strictly  local,  that  is  to  say,  to  the  positive  statutes 
of  the  state,  and  the  constniction  thereof  adopted  by  the  local 
tribunals. ' ' 

Before  leaving  this  phase  of  the  subject  it  may  not  be  out  of 

^  Supra,  p.  7. 


l.\  S(1MK    KKn-.M"  CKITU'IS.M   l)F 

place  to  remark  lluit,  as  far  as  \vc  arc  able  to  say,  after  making 
a  diligent  search,  no  Supreme  Court  decision  lias  ever  thrown 
discrciiil  upon  Szi't/i  v.  Tyson,  tlu>ui;h  it  has  been  the  mark  of 
some  atlverse  criticism  both  by  text  writers  and  by  a  few  state 
courts.'  Whether  S:i'ift  v.  Tyson  is  right  or  wrong  cannot 
affect  tlie  iMincij^le  under  discussion,  because  the  case  expressly 
admits  that  the  federal  courts  are  bound  to  follow  in  all  cases 
of  purcl)'  local  law. 

Up  to  this  point  we  have  shown  that  in  cases  involving 
local  law,  b)-  which  is  meant  statute  law  and  laws  involv- 
ing local  real  property  rules,  the  federal  courts  are  bound 
to  accept  the  interpretation  of  the  state  court  as  final.  Wc 
now  meet  a  qualification,  if  such  it  maybe  called.  About  the 
same  time  as  Swift  v.  Tyson,  the  case  of  Groves  v.  SlaugJiter' 
was  decided.  It  laid  down  the  perfectly  plain  proposition,  that 
when  there  are  no  state  decisions  to  aid  the  federal  court  in  its 
investigation  of  the  law  of  the  state,  the  federal  court  must 
construe  for  itself  This  does  not  mean  that  the  federal  court 
engrafts  a  law,  or  an  interpretation  of  a  law  upon  a  state.  It 
means  merelx-,  that  where  it  has  no  light  from  state  decisions, 
to  use  the  court's  expression  in  Groi>cs  v.  Slaughter,  it  must 
seek  the  interpretation  from  the  ordinary  rules  of  the  common 
law.     Then  if  the  state  court  puts  a  different  construction  upon 

'In  Forepaugh  v.  R.  R.,  128  Pa.  217  (1889),  McCollum,  J.,  declared 
that  the  distinction  laid  down  in  Swift  v.  Tyson  was  illogical  and  unsup- 
ported either  by  reason  or  authority.  The  state  courts  generally  have 
adopted  the  rule,  that  the  law  of  the  place  where  the  contract  was  made 
should  govern,  and  do  not  seek  to  follow  the  lead  of  the  federal  courts, 
and  interpret  such  questions  for  themselves. 

On  the  other  hand,  the  federal  courts  have  steadily  adhered  to  the 
doctrine  as  laid  down  in  Swift  v.  Tyson.  In  the  following  five  leading 
cases,  the  doctrine  is  re-affirmed  with  great  emphasis,  the  cases  dating 
from  1855  to  1893  :  Watson  v.  Tarpley,  18  How.  517  (1855),  Daniel,  J.  ; 
Chicago  V.  Robbins,  2  Black,  418  (1862),  Davis,  J.  ;  R.  R.  v.  Lockwood, 
17  Wall.  357  (1873),  Bradly,  J.  ;  Town  of  Venice  v.  Murdock.  92  U.  S. 
494  (1875),  Strong,  J.  ;  Liverpool  Steamship  Co.  v.  Pluxnix  Ins.  Co.,  129 
U.  S.  397  (1888),  Gray,  J.  "In  questions  of  commercial  law.  United 
States  courLs  will  not  follow  state  courts,  even  when  they  obtain  juris- 
diction by  diverse  citizenship:"  The  Guildhall,  58  Fed.  796  (1893), 
Brown,  J. 

»  15  Pet.  449(1841). 


GELPCKE  VERSUS  DUBUQUE.  I  5 

the  statute,  the  federal  court  must  change  its  view  and  follow 

suit. 

It  remains  only  to  examine  further  authorities  in  support  of 
the  rule  thus  narrowed  in  its  application.  The  law  on  this 
point  is  so  well  settled  that  it  would  be  vain  to  cite  further 
authorities,  were  it  not  for  the  desirability  of  establishing  not 
only  the  general  principle,  but  also  the  exact  import  and  sig- 
nificance of  the  rule  as  laid  down  by  the  courts,  in  both 
majority  and  minority  opinions. 

In  State  Bank  of  Ohio  v.  Knoop}  Mr.  Justice  McLean  for 
the  court,  says,  "  The  rule  observed  by  this  court  to  follow 
the  construction  of  the  statute  of  the  state  by  its  Supreme 
Court,  is  strongly  urged.  This  is  done  when  we  are  required 
to  administer  the  law  of  the  state.  The  established  construc- 
tion of  a  statute  of  the  state  is  received  as  a  part  of  the 
statute."  The  court  then  went  on  to  distinguish  the  case 
before  it,  but  did  not  question  the  rule  in  cases  where  the  federal 
court  i"^  administering  the  law  of  the  state. 

In  a  dissenting  opinion  in  the  same  case,  Mr.  Justice  Catron 
observed  :  "  If  the  decisions  in  Ohio  have  settled  the  question 
in  the  affirmative,  that  the  sovereign  political  power  is  not  the 
subject  of  an  irrepealable  contract,  then  few  will  be  so  bold 
as  to  deny  that  it  is  our  duty  to  conform  to  the  construction 
they  have  settled ;  and  the  only  objection  to  conformity  that 
I  suppose  could  exist  with  any  one,  is  that  the  construction  is 
not  settled.  .  .  .  Whether  this  construction  given  to  the 
State  Constitution  is  a  proper  one  is  not  a  subject  of  inquiry 
in  this  court ;  it  belongs  exclusively  to  the  state  courts,  and 
can  no  more  be  questioned  by  us  than  state  courts  and  judges 
can  question  our  construction  of  the  Constitution  of  the  United 

States." 

In  Gelpcke  v.  Dubuque,  Mr.  Justice  Miller,  dissenting,  de- 
clared that  "  the  general  principle  is  not  controverted  by  the 
majority;  that  to  the  highest  court  of  the  state  belongs  the 
right  to  construe  its  statutes  and  its  constitution,  except  where 
they  may  conflict  with  the  Constitution  of  the  United  States, 

1  i6  How.  p.  369  (1853),  M'Lean,  J. 


1 6  SOME  RECENT  CKITICISM  OF 

or  with  some  law  or  treaty  made  under  it.  Nor  is  it  denied 
that  when  sucli  a  construction  has  been  <:;iven  by  the  state 
court,  that  tliis  court  is  bound  to  follow  it.  The  cases  on  this 
subject  are  numerous,  and  the  principle  is  as  well  settled,  and 
is  as  necessary  to  the  harmonious  working  of  our  complex 
system  of  government,  as  the  correlative  proposition  that  to 
this  court  belongs  the  right  to  expound  conclusively,  for  all 
other  courts,  the  Constitution  and  laws  of  the  Federal  Gov- 
ernment." 

The  cases  dealing  with  tiie  naked  principle  are  so  over- 
whelming in  their  approval,  that  it  does  not  seem  necessary  or 
profitable  to  continue  further  an  examination  of  the  cases  in 
the  text.  It  may  be  well,  however,  to  call  attention  to  one 
later  case.  Burgess  v.  Seligman,^  in  which  the  principle  was 
referred  to  as  being  free  from  doubt.  Mr.  Justice  Bradley, 
delivering  the  opinion,  pointed  out  that  when  the  law  had  not 
been  construed  by  the  state  court,  the  federal  court  might 
construe  for  itself,  and  then  declaring  it  to  be  the  duty  of  the 
federal  court  to  follow  where  the  law  is  settled,  continues, 
"  This  is  especially  true  with  regard  to  the  law  of  real  estate 
and  the  construction  of  state  statutes  and  constitutions.  Such 
established  rules  are  always  regarded  by  the  federal  courts, 
no  less  than  by  the  state  courts  themselves,  as  authoritative 
declarations  of  what  the  law  is."^ 

Without  elaborating  further  on  this  phase  of  the  question, 
a  few  additional  cases  are  cited  in  the  note.  All  of  these  have 
been  examined,  and  in  all  of  them  it  is  emphatically  asserted 
that  the  federal  courts,  except  in  the  case  mentioned  above, 
are  absolutely  powerless  to  construe  state  statutes  or  state 
constitutions.^ 


1  107  U.  vS.  20  (1882),  Bradley,  J. 

=  It  is  submitted  that  this  case  went  too  far  in  holding  the  law  to  be 
unsettled. 

'  Porterficld  v.  Clark,  2  How.  76  (1844),  Catron,  J.  ;  Nesmith  v.  vShel- 
don,  7  How.  812  (1849),  Taney,  C.  J.  ;  Williamson  v.  Berry,  8  How.  495 
(1850);  Van  Rensselaer  v.  Kearney,  11  How.  297  (1850),  Nelson,  J.  ; 
Webster  v.  Cooper,  14  How.  488  (1852),  Curti.ss,  J.  ;  Beauregard  v.  New 
Orleans,  18  How.  497  (1855),  Campbell,  J.  ;  Union  Bank  of  Tennessee 
z/.  Jolly's  Adm'rs,  18  How.  503  (1855),  Wayne,  J.;  Amy  v.  Allegheny 


GELPCKE  VERSUS  DUBUQUE.  1/ 

We  now  approach  that  class  of  cases,  represented  by  the 
principal  case  under  discussion  in  this  essay,  where  contract 
rights  are  involved.  The  decisions  of  this  class  have  been 
the  subject  of  much  criticism,  both  hostile  and  favorable,  ever 
since  the  first  one  of  the  line  was  decided.  The  principle 
upon  which  they  are  based  seems  to  be  hidden  in  mystery,  if 
we  are  to  judge  from  the  various  and  miscellaneous  opinions 
hazarded  by  text-writers.  We  desire  to  arrive  at  this  prin- 
ciple partly  by  a  process  of  exclusion.  That  is  the  purpose 
of  this  section,  viz. :  to  show  that  the  court  could  not  pos- 
sibly have  arrogated  to  itself  the  right  to  construe  a  state 
law  without  deliberately  overthrowing  an  overwhelming  con- 
sensus of  Supreme  Court  authorities.  The  examination  of 
these  cases  will  be  postponed  to  the  next  section. 

Before  leaving  the  discussion  of  the  rule  enunciated  at  the 
head  of  this  section,  however,  we  may  perhaps  be  pardoned  a 
brief  examination  of  its  correctness,  on  principle. 

It  is  obvious  that  it  would  be  quite  beyond  the  scope  of  this 
paper  to  go  deeply  into  the  question  of  the  relative  powers  of 
the  state  and  the  Federal  Government.  It  is  plain,  however, 
that  the  Government  of  the  United  States  is  one  of  purely 
delegated  powers.  It  has  not  any  inherent  sovereignty  over 
the  people  of  the  United  States.  It  was  created  by  the  in- 
strument which  both  confers  and  limits  its  powers.  It  follows 
that  it  possesses  no  powers,  except  those  either  expressly  or 
impliedly  conferred  upon  it,  by  the  Constitution. 

City,  24  How.  364  (i860),  Wayne,  J.  ;  Rice  v.  R.  R.,  i  Black.  374  (1861); 
Nichols  V.  Levy,  5  Wall.  433  (1866),  Swayne,  J.  ;  Prov.  Ins.  Co.  v.  Mass., 
6  Wall.  611  (1867)  ;  Randall  v.  Brigham,  7  Wall.  523  (1868),  Field,  J.; 
Gut  V.  The  State,  9  Wall.  35  (1869),  Field,  J.  ;  Aicardi  v.  The  State,  19 
Wall.  635  (1873),  Swayne,  J.  ;  R.  R.  v.  Ga,  98  U.  S.  359  (1878)  ;  Baily  v. 
Magwire,  22  Wall.  215  (1874),  Davis,  J.  ;  Town  of  Venice  v.  Murdock,  92 
U.  S.  494  (1875),  Strong,  J.  ;  Davis  v.  Indiana,  94  U.  S.  494  (1S76),  Miller, 
J.  ;  Stone  v.  Wisconsin,  94  U.  S.  156  (1876),  Waite,  C.  J.  ;  East  Oakland 
^.  Skinner,  94  U.  S.  255  (1876),  Hunt,  J.  ;  Boyd  v.  Ala.,  94  U.  S.  645 
(1876)  ;  Town  of  South  Ottawa  v.  Perkins,  94  U.  S.  261  (1876)  ;  County 
of  Leavenworth  v.  Barnes,  94  U.  S.  70  (1876)  ;  Adams  v.  Nashville,  95 
U.  S.  19  (1877)  ;  Hall  v.  De  Cuir,  95  U.  S.  485  (1877),  Waite,  C.  J.  ;  San- 
born V.  County  Com.,  97  U.  S.  iSr  (1877)  ;  R.  R.  v.  Gaines,  97  U.  S.  697 
(1878);  Fairfield  v.  Co.  of  Galatin,  100  U.  S.  418  (1879);  Lewisohn  v. 
Steamship  Co.,  56  Fed.  603  (1893),  Benedict,  J. 


l8  SOMK  RKCKNr  CKIllCLSM  OF 

On  the  contrary,  it  is  cciiially  well  settled  that  the  states  do 
possess  an  inherent  sovereii^nty  over  their  subjects.  By 
adopting  the  Constitution  they  gave  up  to  a  central  govern- 
ment, bv  them  created,  certain  of  their  inherent  functions. 
All  the  powers  not  so  delegated  were  retained  by  the  states.* 
This  is  true  equally  of  any  department,  whether  legislative, 
executive  or  judicial.  This  is  clearly  pointed  out  by  Mr.  Ham- 
ilton in  the  Federalist.  He  says  :  "  The  principles  established 
in  a  former  paper  teach  us  that  the  states  will  retain  all  pre- 
existing authorities  which  may  not  be  exclusively  delegated 
to  the  federal  head  ;  and  that  this  exclusive  delegation  can 
only  exist  in  one  of  three  cases  :  where  an  exclusive  authority 
is.  in  express  terms,  granted  to  the  Union  ;  where  a  particular 
authority  is  granted  to  the  Union  and  the  exercise  of  a  like 
authority  is  prohibited  to  the  states  ;  or  where  an  authority  is 
granted  to  the  Union,  with  which  a  similar  authority  in  the 
states  would  be  utterly  incompatible.  Though  these  princi- 
ples may  not  apply  with  the  same  force  to  the  judiciary  as  to 
the  legislative  power,  yet  I  am  inclined  to  think  that  they  are, 
in  the  main,  just  with  respect  to  the  former  as  well  as  the 
latter.  And  under  this  impression  /  shall  lay  it  down  as  a 
ride,  that  the  state  courts  ivill  retain  the  jurisdiction  they  now 
have,  wiless  it  appears  to  be  taken  away  in  one  of  the  enumer- 
ated modes''"^ 

If,  by  the  Constitution,  the  states  gave  up  the  right  which 
they  possessed,  to  construe  their  own  laws,  then  the  federal 
power  must  exercise  this  duty.  If,  on  the  other  hand,  such 
right  was  not  delegated  to  the  Federal  Government,  then  it 
can  possess  no  such  right.  It  either  was,  or  was  not,  so  dele- 
gated. It  must  be  cither  one  or  the  other.  It  might  oe 
delegated,  very  possibly,  in  some  instances  and  not  in  others ; 
but  in  any  given  situation  the  federal  courts'  right  to  construe 
must  be  derived  from  the  Constitution,  or  it  does  not  exist. 
There  can  be  no  discretionary  power,  because  of  a  "  fancied 
supervision  over  contracts,"  or  for  any  other  reason.  This 
seems  almost  too  plain  for  argument. 

'  See  Amendments  to  the  Constitution  of  the  United  States,  Art.  X. 
»  The  Federalist,  No.  LXXXII,  pp.  572-3- 


GELPCKE  VERSUS  DUBUQUE.  1 9 

It  is  scarcely  necessary  to  refer  to  the  constitutional  pro- 
visions, for  it  has  never  even  been  claimed  that  such  rights 
were  delegated  to  the  Federal  Government.  In  Art.  Ill, 
Section  2,  the  cases  in  which  the  federal  courts  shall  have 
jurisdiction  are  enumerated.  Among  these  is  not  a  provision 
that  the  federal  courts  shall  construe  state  statutes,  neither  is 
there  any  mention  of  a  "  general  supervision  over  contracts  " 
granted  to  these  courts.  The  right  of  a  state  to  interpret  its 
own  laws  is  inherent  and  exclusive.  The  situation  is  precisely 
the  same  as  if  the  two  courts  belonged  to  different  nations. 
This  analogy  was  drawn  in  Elniendorf  w.  Taylor}  As  pointed 
out  above,  the  court  say  in  that  case  "  This  course  is  founded 
on  the  principle,  supposed  to  be  universally  recognized,  that 
the  judicial  department  of  every  government,  where  such 
department  exists,  is  the  appropriate  organ  for  construing  the 
legislative  acts  of  that  government.  Thus  no  court  in  the 
universe  which  professed  to  be  governed  by  principle,  would^ 
we  presume,  undertake  to  say  that  the  courts  of  Great  Britain, 
or  of  France,  or  of  any  other  nation,  had  misunderstood  their 
own  statutes,  and  therefore  erect  itself  into  a  tribunal  which 
should  correct  such  misunderstanding." 

Cooley,  in  his  book  on  "  Federal  Limitations,"  lays  down  the 
rule  as  follows  :  "  But  the  same  reasons,  which  require  that 
the  final  decision  upon  all  questions  of  national  jurisdiction 
should  be  left  to  the  national  courts,  will  also  hold  the  national 
courts  bound  to  respect  the  decisions  of  the  state  courts,  upon 
all  questions  arising  under  the  state  constitutions  and  laws, 
where  nothing  is  involved  of  national  authority,  or  of  right 
under  the  constitution,  laws,  or  treaties  of  the  United  States  ; 
and  to  accept  the  state  decisions  as  correct  and  to  follow 
them,  whenever  the  same  questions  arise  in  the  national 
courts.'"* 

The  same  thought  is  expressed  throughout  his  work  by 
Hon.  J.  I.  Clark  Hare.  He  says  (p.  23)  that  the  national 
Government  "  would  be  supreme  throughout  the  whole  range 


'  Supra,  p.  7, 

'  Cooley's  "  Federal  Limitations,"  p.  20-21. 


20  SOME  KIXMNP  CRITICISM  OF 

of  its  powers,  but  yet  beinj^  confined  within  fixed  limits,  would 
not  divest  the  jurisdiction  of  tl)e  states  over  the  matters  com- 
mitted to  their  care.  State  sovereignty  would  remain,  al- 
though curtailed  in  its  proportions."' 

This  principle  is  so  well  settled  as  to  be  not  open  to  doubt. 
As  the  state  is  not  given  up  its  inherent  right  to  construe  its 
own  laws,  its  right  is  paramount  and  exclusive. 

The  idea  that  the  federal  courts  are  bound  to  follow  state 
decisions  as  a  matter  of  obligation  Professor  Pepper  (p.  71) 
declares  has  been  absolutely  repudiated  by  the  courts.  In 
view  of  such  an  expression  by  an  author,  whose  opinion  is  so 
eminently  worthy  of  careful  consideration,  it  is  with  great 
hesitation  that  we  acknowledge  holding  a  contrary  view. 

When  one  glances  over  the  field  of  conflict,  he  is  irresi.st- 
iblj'  impressed,  at  first,  with  the  thought  that  the  federal 
courts  have,  as  it  were,  taken  the  bit  in  their  teeth  and 
brushed  aside  all  restraining  power,  breaking  through  the 
rules  at  will.  A  more  careful  examination  will,  however, 
show  more  of  method  than  at  first  glance  appears. 

We  see  first  a  group  of  cases,  where  the  questions  involved 
are  confined  to  local  law  as  heretofore  explained.  We  have 
yet  to  see  the  first  case  which  shakes  the  rule  that  the  federal 
court  is  bound  to  follow  ;  the  reason  uniformly  given  for  this 
obligation  is  that  the  federal  court  is  as  fully  bound  to  apply 
the  construction  as  to  apply  the  law  itself,  by  reason  of  the 
state's  sovereignty  in  that  field. 

We  next  perceive  a  group,  which  the  courts  have  said, 
rightly  or  wrongly,  do  not  involve  questions  of  local  law. 
Here,  obviously,  the  state  decisions  are  not  followed,  but  the 
principle  is  not  denied. 

Lastly  we  see  a  group  in  which  the  federal  courts  have  re- 
fused to  apply  a  state  court's  change  of  interpretation  because 
such  later  interpretation,  thus  applied,  would  infringe  some 
clause  of  the  federal  Constitution.  To  this  latter  class  belong 
the  cases  represented  by  Gelpcke  v.  Dubuque.  To  show  this 
shall  be  the  purpose  of  the  next  section. 

'  Am.  Const'l  Law,  pp.  23. 


ERRATA. 


Page  20,  sixth  line,  read  "  has  "  for  "  is." 
Page  27,  note,  Ray  v.  Gas  Co.,  138  Pa.  576. 


GELPCKE  VERSUS  DUBUQUE.  21 

B.  The  decision  was  based  on  the  theory  that  the  state  courts' 
reversal  of  interpretation  of  the  statute  was  a  law  impairing  the 
obligation  of  contracts. 

The  purpose  of  the  preceding  section  will  become  more  evi- 
dent as  we  proceed.  We  have  attempted  to  show,  and  it  is 
believed  that  it  has  been  shown,  that  in  cases  involving  statu- 
tory construction,  the  federal  courts  have  acknowledged  their 
duty  to  adopt  the  judgment  of  the  state  court  as  final. 

It  has  often  been  said,  however,  that  Gelpcke  v.  Dnbuque  and 
kindred  cases  form  an  exception  to  that  rule.  On  principle  it 
is  clear  that  Gelpcke  v.  Dubuque  must  be  justified,  if  at  all,  on 
one  of  three  grounds  : 

(i)  On  the  theory  that  the  federal  courts  are  not  bound  to 
follow  state  constructions. 

(2)  On  the  theory  that  the  rule,  as  above  laid  down,  exists, 
but  that  there  is  an  exception,  for  some  occult  reason,  in  the 
case  of  contracts. 

(3)  On  the  theory  that  a  federal  question  was  involved.  If 
the  decision  can  be  explained,  without  adopting  one  of  these 
views,  we  are  unable  to  comprehend  that  explanation. 

The  foregoing  section  has  proven  that  the  first  view  is  un- 
tenable, even  if  it  had  ever  been  urged.  We  believe  that  the 
same  principle,  as  there  investigated,  renders  impossible  the 
second  view.  It  is  not  necessary  here  to  further  elaborate  on 
the  principle  as  discussed  in  the  latter  part  of  the  preceding 
section.  As  there  stated,  the  federal  courts,  either  have,  or 
have  not,  the  right  to  construe  state  statutes.  If  they  have 
not,  and  we  have  shown  that  they  have  not,  then,  where  the 
power  does  not  exist,  no  "  exceptions  "  can  arise.  This  on 
principle  seems  plain.  But,  it  is  said,  the  federal  courts  have 
made  an  exception.  This,  however,  begs  the  question.  In  the 
first  place,  it  is  not  a  legitimate  argument  for  the  correctness 
of  a  principle  discussed  on  a  priori  grounds,  to  cite  a  decision  ; 
and,  in  the  second  place,  it  is  yet  to  be  demonstrated  that  these 
cases  were  decided  on  that  principle. 

All  text  writers  who  advance  the  "  exception "  theory, 
declare,  at  the  same  time,  that  the  theory  is  unsound.     This 


2  2  SOMK  KKCENT  CKITICI^^M  t)F 

brings  us  to  the  conclusion  towards  which  all  the  argument  so 
far  has  been  directed.  Hither  Gtlpckc  v.  Dubuijuc  is  a  tvrotig 
decision,  or  else  it  involves  a  federal  questio)i.  Having  on  prin- 
ciple reached  this  conclusion,  we  proceed  t(i  find  out  what  was, 
in  fact,  the  basis  of  the  decision. 

Kver  since  the  case  was  decided,  text  writers  have  been  ad- 
vancing theories  upon  which,  in  their  opinions,  the  case  was 
rested.  Professor  Tha\-er,  in  an  article  in  the  Harvard  Law 
Reviiw '  upholds  the  decision,  but  places  it  upon  the  ground 
of  bias.  That  is,  he  says,  where  the  federal  courts  have 
reason  to  believe  that  the  state  courts  have  been  partial  in 
administering  the  state  law,  they  can,  themselves,  entirely 
disregard  the  state  law.  This  seems  to  be  a  remarkable  con- 
clusion. As  Professor  Thayer,  himself,  says,  one  reason  for 
establishing  the  Circuit  Courts,  was  to  provide  an  impartial 
tribunal  wherein  the  laiu  of  the  state  should  be  administered  ; 
and  yet  in  order  to  administer  impartially  that  law  of  the  state, 
the  federal  courts  may  entirely  disregard  it,  and  administersome 
other  law,  for  it  must  be  conceded  that  the  decisions  of  the  state 
court  are  what,  within  the  thirty-fourth  section  of  the  Judiciary 
Act,  do  constitute  the  law  of  the  state.  From  the  standpoint 
of  at  least  one  of  the  parties,  who  has  a  legal  right  to  have  the 
law  of  the  state  applied  to  his  case,  this  would  scarcely  seem 
to  be  a  notable  instance  of  impartiality.  To  allow  such  a 
latitude  as  this,  in  the  case  of  "  bias,"  would  be  to  give  the 
federal  courts  an  unlimited  right  to  disregard  state  laws  when- 
ever they  see  fit  to  do  so.  With  the  greatest  respect  for  the 
eminent  writer,  it  is  submitted  that  the  decision  cannot  be  sup- 
ported upon  this  theory,  and  there  is  no  ground  for  believing 
it  to  have  been  the  basis  of  the  court's  opinion. 

Hon.  Henry  Reed,  in  his  article  entitled  "  The  Rule  in 
Gelpcke  v.  Dubuque,"  ^  makes  an  exhaustive  examination  of 
the  cases,  and  ends  by  declaring  Gelpcke  v.  Dubuque  to  be  an 
anomalous  case,  which  is  unknown  elsewhere  in  the  law.  He 
does  not  seek  the  principle  upon  which  it  was  founded,  but 
contents  himself  by  saying  that  the  decision  was  just,  has  not 

'  4  Harv.  Law  Rev.,  311  (1891). 
^  9  Am.  Law  Rev.,  381  (1871). 


GELPCKE  VERSUS  DUBUQUE,  23 

been  overruled,  and  was  made  necessary  by  peculiar  circum- 
stances. This  may  be  a  satisfactory  conclusion  to  the  utili- 
tarian, but  is  certainly  most  disappointing  to  a  student  of  law. 
The  fact  that  the  decision  is  just,  should  lend  additional 
diligence  to  the  search  for  its  underlying  principle,  but  of 
itself  is  not  a  sufficient  answer  to  legal  objections  to  its 
soundness. 

Professor  Pepper,  in  his  book  above  referred  to,  seems  to 
think  the  decision  recognizes  an  exception  to  the  duty  of  the 
federal  courts  to  "  follow,"  and  therefore  questions  its  sound- 
ness. 

Mr.  William  B.  Hornblower^  and  Mr.  Conrad  Reno,^  in  two 
well  considered  articles,  support  the  case  on  the  theory  that  it 
involves  a  federal  question. 

Mr.  William  H.  Rand,  Jr.,^  places  the  decision  upon  the 
same  ground,  but  intimates  his  opinion  that  it  cannot  be 
supported. 

Professor  Patterson  says  that  under  the  word  "law,"  as 
used  in  the  federal  clause  forbidding  states  to  impair  the  obli- 
gation of  contracts,  is  included  "judicial  decisions  of  state 
courts  of  last  resort,  rendered  subsequently  to  the  making  of 
the  contract  in  question,  and  antecedently  to  the  suit  in  which 
the  court  determines  the  invalidity  of  the  contract,  and  altering 
by  construction  the  constitution  and  statutes  of  the  state  in 
force  when  the  contract  was  made,"^  citing  Gdpcke  v.  Dubuque. 

Mr.  Cooley  also  places  the  decision  on  the  ground  that  the 
federal  clause  was  violated.^ 

The  case  is  referred  to  without  comment  in  a  note  to  Story 
on  the  Constitution.^  No  reason  is  given  for  the  conclusion 
reached  therein. 

Hon.  J.  I.  Clark  Hare,  however,  gives  a  careful  discussion 
of  the  entire  series  of  cases  represented  by  Gelpcke  v.  Dubuque, 
and  clearly  intimates  his  opinion  that  the  case  was  decided  on 

^  14  Am.  Law  Rev.  211. 

*  23  Am.  Law  Rev.  190. 
^  8  Harv.  Law  Rev.  328. 

*  Federal  Restraints  on  State  Action,  pp.  146-147. 

*  Cooley's  Principles  of  Const.  Law,  p.  312. 
«  Vol  II,  pp.  575-576. 


24  SOME  KIXK.NT  IKI  IICISM   OF 

the  theory  that  tlic  state  courts'  tlecision  was  a  "law  "  within 
the  nieatiiiiL:;  of  the  federal  clause.' 

Enough  has  been  saiii  ti>  sh«uv  that  text  writers  <^enerall\% 
certainly  all  whose  works  arc  recognized  as  standard  authori- 
ties, concur  in  the  opinion  that  the  decision  in  Gelpckc  v. 
Dubuque  was  founded  on  the  theory  that  a  federal  question 
was  involved.  But  however  much  we  may  prize  the  opinions 
of  writers,  after  all  the  best  source  of  knowledge  is  the  case 
itself,  and  the  comments  upon  it  in  later  opinions  of  the  same 
court. 

Mr.  Justice  Swayne  delivered  the  opinion.  His  language 
has  been  the  subject  of  much  adverse  comment.  It  must  be 
conceded  that  the  learned  justice  leaves  much  to  be  desired. 
However,  if  his  opinion  be  examined  with  a  view  to  discover- 
ing the  underlying  principle  which  was  in  the  mind  of  the 
court,  it  is  thought  that  the  examination  will  not  prove  so 
unsatisfactory  as  at  first  appears.  In  the  first  place,  we  must 
assume  that  the  rule  that  the  federal  courts  are  bound  to 
follow  the  state  courts'  construction  of  their  own  laws,  was 
present  in  the  mind  of  Mr.  Justice  Swayne.  The  strongest 
proof  of  this  is  the  language  of  Mr.  Justice  Miller,  dissenting. 
He  says,  "  The  general  principle  is  not  controverted  by  the 
majority,  that  to  the  highest  courts  of  the  state  belongs  the 
right  to  construe  its  statutes  and  its  constitution,  except  where 
they  may  conflict  with  the  Constitution  of  the  United  States, 
or  some  statute  or  treaty  made  under  it.  Nor  is  it  denied  that 
when  such  a  construction  has  been  given  by  the  state  court, 
that  this  court  is  bound  to  follow  it."  Further,  he  calls  atten- 
tion to  the  language  of  Mr.  Justice  Swayne  in  the  case  of 
Lcffingivell  v.  Warren^  which  was  decided  at  the  next  pre- 
ceding term  of  court.  In  that  case  Mr.  Justice  Swayne  says, 
"  The  construction  given  to  a  state  statute  by  the  highest 
judicial  tribunal  of  such  state,  is  regarded  as  a  part  of  the 
statute,  and  is  as  binding  tipoji  the  courts  of  the  United  States 
as  the  text.  ...  If  the  highest  judicial  tribunal  of  a  state 
adopt   new  views   as   to  the   proper   construction    of  such   a 

'  Hare's  American  Const.  Law,  pp.  721-726. 
'  2  Black,  599. 


GELPCKE  VERSUS  DUBUQUE,  2$ 

statute,  and  reverse  its  former  decisions,  this  court  will  follow 
the  latest  settled  adjudications."  No  language  can  be  more 
clear  or  explicit  than  this.  It  is  impossible  to  believe  that 
Mr.  Justice  Swayne  could  have  overlooked  this  principle  in 
preparing  his  opinion.  We  assume  that  it  was  in  his  mind  at 
the  time.  He  must  have  grounded  his  decision  upon  a  well 
defined  exception  to  the  rule,  or  upon  the  theory  that  the 
state  court's  decision  violated  a  federal  clause. 

It  may  here  be  parenthetically  remarked  that  Mr.  Justice 
Miller's  suggestion  that  the  court  were  influenced  in  their 
decision,  because  they  considered  the  state  construction  to  be 
unsettled,  will  not  bear  examination.  Mr.  Justice  Swayne, 
on  page  205,  says  it  is  unnecessary  to  decide  whether  the 
construction  was  or  was  not  settled,  as  the  point  was  not 
material.  It  could  not,  therefore,  have  been  the  basis  of  the 
decision. 

We  return  to  the  proposition  just  stated.  The  decision 
must  have  rested  upon  a  federal  question,  or  upon  a  well 
defined  exception  to  the  rule.  Nowhere  in  the  language  of 
the  court  is  there  a  suggestion  of  an  exception  to  be  engrafted 
upon  the  principle  that  the  federal  courts  are  bound  to  follow 
the  construction  of  the  state  courts. 

The  first  half  of  the  opinion  is  devoted  to  a  discussion  of 
the  legality  of  the  state  legislation.  It  has  been  suggested 
that  the  excitement  and  unrest,  during  the  time  of  the  Civil 
War,  was  largely  responsible  for  the  decision  in  this  case. 
That  it  was  a  violent  reaction  from  the  doctrine  of  States' 
Rights  which  was  at  that  time  being  pressed  so  disastrously 
by  the  states  of  the  South.  This  may  have  been,  to  a  great 
extent,  true.  This  may  have  been  the  primary  cause  for  the 
discussion  of  a  clearly  irrelevant  question,  in  the  early  part  of 
Mr.  Justice  Swayne's  opinion.  That  it  was  irrelevant,  and 
that  Mr.  Justice  Swayne  knew  it  was  irrelevant,  seems  to  be 
very  clear.  Perhaps  he  desired  to  administer  a  rebuke  to  the 
state  for  attempting  to  evade  its  obligations  by  a  construc- 
tion so  palpably  wrong  as  to  be  in  conflict  with  the  law  of 
"  sixteen  other  states,"  but  that  he  intended  to  make  that  fact 
the  ground  of  his  decision,  it  is  impossible  to  believe. 


26  SOMK  ki:ci:nt  ckiticism  of 

Mr.  Justice  Swaync,  as  \vc  have  pointed  out,  in  a  case  just 
previous    to    Gclpcke  v.   Dubuque,   clearly   demonstrated    his 
belief  in  the  duty  of  the  federal  courts,  as  a  matter  of  obliga- 
tion, to  follow  the  state  courts  in  cases  precisely  similar  to  the 
one  at  bar.      Is  it  conceivable  that  he  had  so  soon  forgotten 
the   rule   he   there   laid  down,  and  now,  as  Professor  Pepper 
says,  "was  assuming  to  administer  not  the  law  of  Iowa,  but 
the  law  of  si.xteen  other  states?"     It  cannot  be  denied  that 
there  is  room  for  this  criticism,  because  the  opinion  undoubt- 
edly does  remark  upon  the  soundness  of  the  former  decisions, 
as  contrasted  with  what  is  said  to  be  the  unsoundness  of  the 
latter.      It  is  insisted,  however,  that  this  discussion  was  given 
merely  for  the  purpose  of  exposing  the  intentions  of  the  state, 
and  not  as  a  legal  reason  for  the  decision.     A  manifest  error 
in  paragraphing  tends  to  substantiate  the  criticism.     In  the 
report  on  p.  206,  Mr.  Justice  Swayne  closes  his  remarks  con- 
cerning the  erroneous   character  of  the   late  Iowa  decision. 
His   closing  sentence  is  placed  at  the  beginning  of  the  fol- 
lowing paragraph,  which  deals  with  the  question  of  the  effect 
to  be  given  to  the  state  decisions  by  the  Supreme  Court.  The 
last   sentence  in   the   preceding   paragraph  is,  "  Many  of  the 
cases  in  the  other  states  are  marked  by  the  profoundest  legal 
ability."     This   should  be  followed  directly  by  the  opening 
sentence  in  the  following  paragraph  :  "The  late  case  in  Iowa, 
and  two  other  cases  of  a  kindred  character  in  another  state, 
also  overruling  earlier  adjudications,  stand   out,  as  far  as  we 
are  advised,  in  unenviable  solitude  and  notoriety."    The  court 
then   begins  an   entirely  different  subject,  and  the  one  which 
involves  the  real  principle  of  the  case.     It  is  not  surprising 
that  the  second  sentence  in  this  paragraph  should  have  been 
thought  to  be  a  sequence  of  the  first,  quoted  above,  but  the 
subject  matter  of  the  two  being  entirely  different,  and  there 
being  no  connecting  words,  it  seems  clearly  to  be  an  error  of 
the  transcriber.    The  next  paragraph,  as  it  should  be  arranged, 
and  which   in    our  opinion  embodies  the    real  ground  of  the 
decision  whether  right  or  wrong,  reads  as   follows :  "  How- 
ever we  may  regard  the  late   case  in  Iowa  as  affecting  the 
future,  it  can  have  no  effect  upon  the  past.     The  sound  and 


GELPCKE  VERSUS  DUBUQUE.  27 

true  rule  is,  that  if  the  contract,  when  made,  was  valid  by  the 
laws  of  the  state  as  then  expounded  by  all  departments  of  the 
government,  and  administered  in  its  courts  of  justice,  its 
validity  and  obligation  cannot  be  impaired  by  any  subsequent 
action  of  legislation,  or  decision  of  its  cotirts,  altering  the  con- 
struction of  the  lazu.  The  same  rule  applies  where  there  is  a 
change  of  judicial  decision,  as  to  the  constitutional  power  of 
the  legislature  to  enact  the  law.  To  this  rule,  thus  enlarged, 
we  adhere.  It  is  the  law  of  this  court.  It  rests  upon  the 
plainest  principles  of  justice.  To  hold  otherwise  would  be  as 
unjust  as  to  hold  that  rights  acquired  under  a  statute  may  be 
lost  by  its  repeal.     The  rule  embraces  this  case." 

Whatever  may  be  said  of  the  ambiguity  of  some  portions 
of  Mr.  Justice  Swayne's  opinion,  certainly  such  a  criticism 
cannot  be  applied  to  this  paragraph.  It  is  clear  and  emphatic. 
If  the  opinion  had  consisted  of  this  alone,  it  would  no  doubt 
have  received  much  less  censure  than  it  has. 

Gelpcke  V.  Dubuque  has  been  followed  by  a  long  line  of 
cases  in  the  Supreme  Court.  The  principle  uniformly  adopted 
as  the  one  there  laid  down,  is  that  when  a  state  court  has 
altered  the  interpretation  of  a  state  statute,  such  decision 
amounts  to  an  amendment  of  the  statute,  and  is,  within  the 
meaning  of  the  federal  clause,  a  "law,"  which,  when  it  im- 
pairs the  obligation  of  contracts,  must  be  deprived  of  its  force 
by  the  federal  courts.^  This  is  so  well  knov/n  that  we  refrain 
from  quoting  from  later  cases.  To  recapitulate,  the  argument 
hitherto  may  de  briefly  summarized  as  follows  : 

1  Thompson  v.  Lee  Co.,  3  Wall.  327  (1865),  Davis,  J.;  Havemeyer  v. 
Iowa  Co.,  3  Wall.  294  (1865),  Swayne,  J.;  Lee  Co.  v.  Rogers,  7  Wall.  181 
(1868),  Nelson,  J.;  Butz  z/.  Muscatine,  8  Wall.  575  ( 1869),  Swayne,  J.; 
The  City  v.  Lamson,  9  Wall.  477  (1869)  ;  Olcott  v.  Supervisors,  16  Wall. 
678  (1S72),  Strong,  J.;  Township  of  Pine  Grove  v.  Talcott,  19  Wall.  666 
(1873),  Swayne,  J.;  Boyd  v.  Ala.,  94  U.  S.  645  (1876);  Town  of  S.  Ottawa 
V.  Perkins,  94  U.  S.  261  (1876);  Douglas  v.  Co.  of  Pike,  loi  U.  S.  677 
(1879),  Waite,  J.;  Anderson  v.  Santa  Anna,  116  TJ.  S.  356  (1885),  Harlan, 
J.;  County  v.  Douglas,  105  U.  S.  728  (1881),  Waite,  C  J.;  Green  v.  County 
of  Conness,  109  U.  S.  104,  Bradley,  J.;  Louisiana  v.  Pilsbury,  105  U.  S. 
278  (1881),  Field,;.;  Ray  v.  Gas  Co.,  138  Pa.  391  (1890),  Clark,  J,;  Union 
Bank  v.  Board,  90  Fed.  7  (1898)  ;  Louisville  T.  Co.  v.  Cincinnati,  76  Fed. 
296  (1896);  Loeb  V.  Trustees  of  Ham.  Co.,  91  Fed.  37  (1899). 


jS  so.ml:  kecknt  ckiticls.m  ok 

(i)  The  federal  courts,  7uheu  (jdininisteriiig  the  /trw  of  the 
state,  are  as  fully  bound  to  accept  the  states'  courts'  construction 
of  state  statutes  as  tliey  are  to  accept  the  statutes  thonsehes. 

(2)  As  there  is  no  exception  to  the  duty  of  the  federal  court  to 
accept  the  state  statutes,  so  there  is  no  exception  to  the  duty  of  the 
federal  court  to  accept  the  s.atcs  courts'  construction  of  those 
statutes,  unless  a  federal  question  is  involved.  Both  must  stand 
or  fall  together,  for  the  courts  have  declared  them  to  be  of  equal 
rank. 

(3)  Mr.  Justice  Sivayne  zuas  fully  in  accord  ivith  the  rule  as 
aboi'c  given,  as  evidenced  by  his  opinions  both  before  and  after 
Gelpcke  v.  Dubuque. 

(4)  Gelpcke  V.  Dubuque  was  decided  on  the  ground  that  the 
Iowa  decision  altering  the  construction  of  the  statute  was,  within 
the  meaning  of  the  federal  clause,  a  "  laiv,"  which  impaired  the 
obligation  of  contracts,  and  whicJi  the  federal  courts  might  refuse 
to  apply  for  that  reason. 

Section  III.— THE  DISSENTING  OPINION  OF  MR.  JUSTICE 

MILLER. 

Having  reached  the  conclusion  as  to  the  basis  of  the  de- 
cision in  Gelpcke  v.  Dubuque,  it  remains  to  examine  the 
correctness  of  that  principle.  Before  taking  up  that  phase  of 
the  subject,  it  may  not  be  inappropriate  to  briefly  refer,  at  this 
point,  to  some  of  the  objections  which  have  been  raised  to  the 
decision.  For  the  purposes  of  this  paper,  we  may  roughly 
divide  all  these  objections  into  two  classes  : 

(i .)  Objections  to  the  statement  that  a  judicial  decision  may 
be  a  "  law,"  when  it  construes  a  state  statute. 

(2.)  Objections  which  have  been  raised  to  any  other  theory 
of  the  case,  among  which  are  the  "  exception  "  and  "  bias  " 
theory. 

If  the  argument  heretofore  is  able  to  stand  the  test  of  inves- 
tigation, we  may  disregard  the  .second  class  of  objections, 
because  we  have  shown  that  the  case  was  not  decided  on  any 
of  those  principles.  This  paper  would  be  incomplete,  how- 
ever, and  its  conclusions  not  well  established,  did  we  not  give 
some  space  to  a  more  careful  examination  of  that  which  is  the 


GELPCKE  VERSUS  DUBUQUE.  29 

ground-work  of  nearly  all  later  argument  against  the  prin- 
ciple of  this  case,  the  famous  dissenting  opinion  of  Mr.  Justice 
Miller. 

Mr.  Justice  Miller's  argument  seems  to  assume  that  the  court 
had  recognized  an  exception  to  the  rule  that  the  federal  courts 
must  adopt  the  state  courts'  construction  of  their  own  laws. 
Most  of  his  criticism,  therefore,  is  levied  at  the  "  exception  " 
theory.  In  all  of  that  criticism  we  fully  concur,  because,  as 
we  have  tried  to  show,  there  can  be  no  exception  to  the  rule. 
It  must  stand  or  fall  in  its  entirety.  That  Mr.  Justice  Miller 
did  not  consider  the  case  to  be  founded  upon  a  constitutional 
question  would  appear  from  the  nature  of  his  criticism,  but 
nevertheless,  that  he  did  recognize  to  some  extent,  at  least, 
this  view  of  the  case,  unmistakably  appears  from  a  careful 
perusal  of  his  opinion,  as  we  shall  try  to  show  later. 

He  points  out  that  the  majority  of  the  court  do  not  contro- 
vert the  principle  "  that  to  the  highest  court  of  the  state 
belongs  the  right  to  construe  its  statutes  and  its  constitution, 
except  where  they  may  conflict  with  the  Constitution  of  the  United 
States,  or  some  treaty  or  statute  made  under  it."  After  having 
made  this  clear  statement,  he  proceeds  to  prove  it  by  quoting 
from  former  opinions  of  the  justices  who  composed  the  majority. 
Then,  in  the  next  breath,  he  declares  that  the  majority  do 
controvert  the  principle  which  he  has  just  said  they  do  not. 
It  will  be  noted  that  the  only  exception  which  Mr.  Justice 
Miller  declares  the  majority  recognize,  is  where  the  statute  or 
constitution  of  the  state  violates  the  federal  constitution.  In 
the  following  paragraph  he  says :  "  But  while  admitting  the 
general  principle,  the  court  say  it  is  inapplicable  because  there 
have  been  conflicting  decisions  "  in  the  state.  This  is  the  first 
reason  which  he  conceives  the  majority  gave.  That  this  is  an 
incorrect  statement  of  the  majority's  conclusion  appears  by 
this  language  taken  from  Mr.  Justice  Swayne's  opinion,  page 
205  :  "  Whether  the  judgment  in  question  can,  under  the 
circumstances,  be  deemed  to  come  within  that  category  (*  the 
latest  settled  adjudications  ')  it  is  not  now  necessary  to  de- 
termine." 

In  the  same  paragraph  (p.  210)  Mr.  Justice  Miller  gives 


30  SOME   KKCliNT  CKITICISM  OK 

what  he  tliinks  was  the  second  reason  that  induced  the  ma- 
jority to  decide  as  they  did.  He  speaks  of  the  "  nioial  force  " 
of  tlie  proposition,  and  continues,  "And  I  think,  taken  in  con- 
nection with  some /ancii'd  duty  of  this  court  to  enforce  contracts 
over  and  beyond  that  appertaining  to  other  courts,  has  given 
the  niajorit)'  a  leaning  towards  the  adoption  of  a  rule,  which 
in  \w\-  o[)inion  cannot  be  justified  either  on  principle  or  au- 
thority." What  that  principle  is,  Mr.  Justice  Miller  nowhere 
in  his  opinion  states  more  definitely  than  here.  But  whatever 
he  conceived  it  to  be,  it  must  have  been  an  "  exception,"  other 
than  the  only  one  which,  he  had  just  carefully  proven,  the 
majorit)'  entertained,  if  we  concede  that  he  did  not  recognize 
a  federal  question  to  be  the  basis  of  the  decision. 

That  these  vague  reasons  form  a  very  unsatisfactory  explana- 
tion of  the  court's  decision  must  be  apparent  to  every  one  It 
seems  little  short  of  a  contradiction  for  the  eminent  dissenting 
justice  to  say  that  no  exception  save  where  a  federal  question 
was  involved  was  recognized,  and  immediately  to  give  as  the 
basis  of  the  decision  of  that  court,  a  very  indefinite  reason  for 
granting  an  exception  other  than  that  one. 

He  also  seems  inconsistent  in  another  i)art  of  his  opinion. 
On  pages  208-209  he  says,  "  Yet  this  is  in  substance  what  the 
majority  of  the  court  have  decided.  They  have  said  to  the 
Federal  Court  sitting  in  Iowa,  '  You  shall  disregard  this  de- 
cision of  the  highest  court  of  the  state  on  this  question. 
Although  you  are  sitting  in  the  State  of  Iowa  and  administer- 
ing her  laws,  and  construing  her  constitution,  you  shall  not 
follow  the  latest,  though  it  be  the  soundest,  exposition  of  its 
constitution  by  the  Supreme  Court  of  that  state,  but  you  shall 
decide  directly  to  the  contrary,  and  where  that  court  has  .said 
that  a  statute  is  unconstitutional,  you  shall  say  that  it  is  con- 
stitutional. Where  it  says  bonds  are  void,  issued  in  the  state, 
because  they  violate  its  con.stitution,  you  shall  say  that  they 
are  valid,  because  they  do  not  violate  its  constitution."  It  is 
submitted  that  nothing  can  be  further  from  what  the  court 
actually  did  .say  than  the  foregoing.  According  to  this  lan- 
guage, which  is  unlimited,  the  federal  court  claimed  the  right 
to  construe  the  constitution  and  statutes  of  the  state  whenever 


GELPCKE  VERSUS  DUBUQUE.  3  I' 

it  should  choose  to  do  so.  The  court  distinctly  disclaimed 
such  a  right,  as  Mr.  Justice  Miller,  himself,  had  previously 
pointed  out.  What  the  court  did  do,  and  all  that  they  did  do, 
was  to  step  in  and  protect  the  bonds  held  by  the  plaintiff. 
To  do  this  it  was  not  necessary  to  arrogate  to  themselves  the 
right  to  dictate  to  the  state  what  her  laws  should  be ;  all  they 
said  was,  ''you  shall  not  in  this  case  apply  a  statute  or  a  con- 
struction of  a  statute  which  impairs  the  obligation  of  this  contract." 
The  court  distinctly  say,  "  However  we  may  regard  the  late 
case  in  Iowa  as  affecting  the  future,  etc.,  etc.,"  thus  plainly 
intimating  their  inability  to  interfere  in  any  way  with  the 
rights  of  the  state  court. 

That  Mr.  Justice  Miller  really  recognized  the  truth  of  these 
observations,  appears  from  a  sentence  from  his  opinion,  on 
page  216:  "In  the  present  case,  the  court  rests  on  the 
former  decision  of  the  state  court,  declining  to  examine  the 
constitutional  question  for  itself.''  How  does  this  sentence 
comport  with  the  one  quoted  above,  where  he  declared  that 
the  court  by  its  decision  had  given  the  federal  court  sitting  in 
Iowa  the  right  to  decide  that  bonds  were  vahd  "  because  the 
state  statute  was  constitutional,"  that  is  because  the  federal 
court  thought,  contrary  to  the  state  court,  that  it  was  consti- 
tutional ?  It  is  one  thing  to  claim  a  right  to  interpret  a  law 
for  a  sovereign  state,  and  to  force  that  law  upon  that  state,  a 
thing  which,  as  Mr.  Justice  Miller  points  out,  cannot  be  done;  it 
is  quite  a  different  thing  to  say  to  the  state  court,  "  Construe 
your  statutes  as  you  will,  and  as  is  your  undoubted  right, 
but  when  you  attempt  to  apply  that  construction,  so  that  it 
impairs  the  obligation  of  contracts,  we,  by  virtue  of  the  federal 
constitution,  claim  the  right  to  forbid  you." 

That  Mr.  Justice  Miller  really  knew  this  to  be  the  attitude 
of  the  court,  is  apparent  from  the  fact  that  while  mainly  com- 
batting what  he  thought  to  be  the  necessary  principle  of  the 
deci.sion,  the  "  exception  "  theory,  yet  at  the  same  time  he 
advances  at  least  two  arguments  against  the  "  federal  "  theory. 

On  pages  210-1 1  he  declares  that  there  can  be  no  question 
of  the  impairment  of  the  obligation  of  contracts,  because  here 
the  court  is  called  upon    "  to  determine  whether  there  ever 


7,2  SOMK  Ki:CENT  CRITICISM  OF 

was  a  contract  made  in  the  case,"  not  to  enforce  a  contract 
whose  existence  was  imdispvited.  This  objection  will  not 
bear  investigation.  It  assumes  lliat  the  Iowa  decision  had 
a  retroactive  effect,  which  is  the  very  point  at  issue. 

The  next  objection  which,  without  naming  it,  Mr.  Justice 
Miller  raises  to  the  "  federal  "  theory  of  Gclpcke  v.  Dubuque, 
is  that  a  judicial  decision  cannot  be  a  law  ;  thus,  on  page  2i  i, 
he  says,  "  The  decision  of  this  court  contravenes  this  principle 
(/.  e.,  that  courts  only  interpret  the  law)  and  holds  that  the 
decision  of  the  court  makes  the  law,  and  in  fact  the  same 
statute  or  constitution  means  one  thing  in  1853,  and  another 
thing  in  1859.  For  it  is  impliedly  conceded  that  if  these 
bonds  had  been  issued  since  the  more  recent  decision  of  the 
Iowa  court,  this  court  would  not  hold  them  valid,"  This  last 
sentence  is  plainly  inconsistent  with  the  sentence  of  Mr.  Justice 
Miller  above  quoted,  where  he  declared  in  general  terms  that 
the  federal  courts  claimed  the  right  to  construe  the  Iowa 
statutes.  Here  he  recognizes  the  scope  of  the  decision  to  be 
limited  to  the  protection  of  this  contract,  by  virtue  of  the  fact 
that  it  had  been  entered  into  before  the  decision  of  the  Iowa 
court,  which  by  applying  a  changed  construction  of  the  statute, 
impaired  its  obligation. 

By  the  objection  last  referred  to,  Mr.  Justice  Miller  has 
touched  the  principle  upon  which  Gclpcke  v.  Dubuque  must 
stand  or  fall.  It  is  not  proposed  to  discuss  it  here.  His  lan- 
guage is  quoted  to  show  that  he,  too,  recognized  the  ground 
of  the  decision  to  be  that,  in  the  opinion  of  the  court,  a  judicial 
decision  can  be  a  "  law  "  within  the  meaning  of  the  federal 
clause,  when  it  enters  into  and  becomes  part  of  a  statute. 
Mr.  Justice  Miller,  however,  persistently  refused  to  recognize 
in  terms  that  the  court  decided  the  case  on  this  theory.  The 
entire  tenor  of  the  court's  opinion  was  distasteful  to  him,  as  he 
very  plainly  shows  by  his  language,  and  as  the  thought  that 
the  federal  courts  could  usurp  state  rights  affected  him  most 
strongly,  he  dealt  mainly  with  that  view.  Almost  at  the  end 
of  his  opinion  he  says,  "  I  think  I  have  sustained  by  this  ex- 
amination of  the  cases,  the  assertion  made  in  the  commence- 
ment of  this  opinion,  that  the  court  has,  in  this  case,  taken  a 


GELPCKE  VERSUS  DUBUQUE.  33 

Step  in  advance  of  anything  heretofore  decided  by  it  on  this 
subject.     That  advance  is  in  the  direction  of  a  usurpation  of 
the  right  which  belongs   to  the   state  courts,  to   decide  as  a 
finahty  upon  the  construction  of  state  constitutions  and  state 
statutes.      This  invasion  is  made  in  a  case  where  there  is  no 
pretejise  that  the  constitution,  as  thus  co7istrued,  is  any  infraction 
of  the  laws  or  Constitution  of  the  United  States"     Side  by  side 
with  this  last  sentence  we  will  place,  at  the  risk  of  repetition, 
a  sentence  from  the  opinion  in  which  Mr.  Justice  Miller  says 
there   is  no  "  pretense "   that  a  federal  clause  had  been  en- 
croached  upon:  "The  sound  and  true   rule  is,  that    if  the 
contract  when  made,  was  valid  by  the  laws  of  the  state  as  then 
expounded  by  all  departments  of  the  government,  and  admin- 
istered in  its  courts  of  justice,  its  vaHdity  and  obligation  cannot 
be  impaired  by  any  subsequent  act  of  legislation,  or  decision 
of  its  courts  altering  the  construction  of  the  law.     The  same 
principle  applies  where  there  is  a  change  of  judicial  decision, 
as  to  the  constitutional  power  of  the  legislature  to  enact  the 
law.     To  this  rule  thus  enlarged  w^e  adhere.     It  is  the  law  of 
this  court.     It  rests  upon  the  plainest  principles   of  justice. 
To  hold  otherwise  would  be  as  unjust  as  to  hold  that  rights 
acquired  under  a  statute  may  be  lost  by  its  repeal.     The  rule 
embraces  this  case." 

On  the  whole,  Mr.  Justice  Miller's  dissenting  opinion  leaves 
much  to  be  desired.  He  does  not  plainly  state  what  he  con- 
siders to  be  the  basis  of  the  decision,  but  contents  himself 
with  a  vigorous  if  not  entirely  connected  dissent  to  the  whole 
opinion.  The  chief  source  of  dissatisfaction,  however,  lies  in 
the  fact  that  he  attacks  not  the  principle  upon  which  the 
court  actually  based  its  opinion,  so  much  as  he  attacks  another 
principle  which  he  thinks  must  have  been  the  basis  of  the  de- 
cision, but  which,  it  is  submitted,  was  not  and  could  not 
have  been. 

If  the  contention  as  to  what  the  underlying  principle  of  the 
case  is  has  been  established,  then  Mr.  Justice  Miller's  opinion 
is  not  pertinent  except  in  so  far  as  it  deals  with  the  question 
of  judicial  legislation. 


34  SOME  KKCKNT  CRITICISM  OF 

Section  IV.— EXAMIN'A  TION  OF  AUTIIORITIES  FOR  THE 
rRlNCIl'LE  INVOLVED. 

Ill  the  clisciission  of  the  correctness  or  incorrectness  of  the 
principle,  which  we  have  shown  to  be  the  foundation  of 
Gilpcl-i'  V.  Dubuque,  we  propose  to  proceed  first,  by  examin- 
ing the  authorities,  and  secondly,  by  an  investigation  on  a 
priori  grounds. 

Before  beginning  an  examination  of  the  cases,  let  it  be 
remembered  that  this  paper  deals  not  so  much  with  the  ques- 
tion of  the  soundness  or  unsoundness  of  Gclpcke  v.  Dubuque 
as  viewed  in  the  light  of  the  decided  cases  of  that  day,  as 
with  the  recent  criticism  of  the  position  there  assumed.  We 
therefore  claim  the  right  to  examine  all  cases  bearing  on  the 
subject,  even  Gelpcke  v.  Dtibuque  itself  and  kindred  cases,  in 
order  to  throw  light  upon  the  attitude  which  the  courts  have 
taken. 

In  the  first  place,  the  courts  have  declared  that 

A.  The  judicial  construction  of  a  state  statute  becomes  a  part 
of  the  statute,  as  much  so  as  if  incorporated  into  the  text. 

This  expression  has  been  so  often  used  by  the  courts  that 
it  scarcely  needs  to  be  supported  by  decisions.  It  has  been 
assumed  by  some  text  writers  and  by  some  judges  that  the 
courts  do  not  mean  what  they  say  by  this  statement.  It  is 
said  that  to  give  it  a  literal  meaning,  would  be  to  give  to  a 
decision  the  force  of  a  law.  Feeling  fearful  of  the  conse- 
quences, should  such  a  conclusion  be  established,  the  writers 
and  judges  were  driven  to  the  result  just  mentioned,  /.  c,  to 
say  that  when  the  courts  have  plainly  said  one  thing,  they 
mean  something  else.  Whether  the  consequences  of  adopting 
the  heretical  doctrine  that  a  judicial  decision  may  be  a  law, 
would  be  so  appalling  as  is  feared  by  some  eminent  authori- 
ties, we  shall  not  discuss  at  this  point.  The  task  now  before 
us  is  to  prove  that  the  courts  have  laid  down  the  rule  as 
stated. 

We  have  already  proven  that  the  federal  courts  are  bound 
to  follow  the  construction  of  the  state  courts  in  cases  involving 
statute  law.     We  have  also  shown  that  they  receive  the  con- 


GELPCKE  VERSUS  DUBUQUE,  35 

struction  as  a  part  of  the  statute.  All  that  is  necessary  at 
this  point  is  to  refer  again  to  the  language  used  in  some  of 
those  cases,  with  the  idea  of  emphasizing  the  thought,  that 
the  construction  does  actually  become  a  part  of  the  statute  law. 

In  Elmendorf  v.  Taylor}  Mr.  Chief  Justice  Marshall  says, 
"We  receive  the  construction  given  by  the  courts  of  the 
nation  {i.  e.,  the  state  courts)  as  the  true  sense  of  the  law,  and 
feel  ourselves  no  more  at  liberty  to  depart  from  that  construc- 
tion than  to  depart  from  the  words  of  the  statute."  Here  he 
plainly  intimates  his  belief  that  the  statutes  and  the  construc- 
tion are  equally  binding. 

In  Green  v.  Neil's  Lessee^  Mr.  Justice  McLean  said,  in  the 
course  of  his  opinion,  "If  the  construction  of  the  highest 
judicial  tribunal  of  the  state  fonn  a  part  of  its  statute  law  as 
much  as  an  enactJ/ient  of  the  legislature,  how  can  this  court  make 
a  distinction  between  theniT' 

In  Shelby  v.  Guy,^  Mr.  Justice  Johnson  uses  the  following 
language:  "  Nor  is  it  questionable,  that  a  fixed  and  received 
construction  of  their  respective  statute  laws  in  their  own 
courts,  makes  in  fact  a  part  of  the  statute  law  of  the  country, 
however  we  may  doubt  the  propriety  of  that  construction." 

In  Christy  v.  Pridgeon}  Mr.  Justice  Field  says,  "  If,  there- 
fore, different  interpretations  are  given  in  different  states  to  a 
similar  local  law,  that  law  in  effect  becomes  by  the  interpreta- 
tion, so  far  as  it  is  a  rule  for  our  action,  a  different  law  in  one 
state  from  what  it  is  in  another^  That  is,  the  action  of  the 
court  changes  the  law  since  both  acts  are  identical  in  laneruaee. 

In  Leffingwell  v.  Warren}"  Mr.  Justice  Swayne  says,  "  The 
construction  given  to  a  statute  of  a  state  by  the  highest 
judicial  tribunal  of  such  state,  is  regarded  as  a  part  of  such 
statute,  and  is  as  binding  upon  the  courts  of  the  United  States 
as  the  text." 

In  Walker  v.  State  Harbor  Commissioners,^  the  court  say, 

'  Supra,  p.  7. 

'  Supra,  p.  9. 

'  II  Wheat.  361  (1826). 

*  4  Wall,  196  (1866),  Field,  J. 

■^  Supra,  p.  24. 

«  17  Wall,  648  (1873). 


36  soMK  ki:ci:nt  ckiticism  of 

rcforrinp:  to  a  state  court's  construction:  "Whatever  maybe 
our  opinion  as  to  its  original  soundness  its  interpretation  is 
acccptctl  and  //  bccivncs  a  part  of  the  statute  as  much  as  if 
incorporated  into  the  body  of  it!' 

In  Webster  v.  Cooper}  the  court,  referring  to  the  construc- 
tion of  the  Constitution  of  Maine  by  its  State  Supreme  Court, 
sa\-,  '' tJiis  court  rccc/res  sucJi  a  settled  construction  as  part  of  the 
fundamental  law  of  the  state." 

These  carefully  worded  expressions  of  the  courts,  if  they 
mean  anything  at  all,  must  mean  that  the  judicial  construction 
of  state  statutes  is  in  fact  a  part  of  the  law  of  the  state.  But 
while  not  expressly  contradicting  the  principles  as  here  laid 
down,  the  courts  have,  in  certain  classes  of  cases,  been  accus- 
tomed to  ignore  them.  It  is  submitted  that  if  this  view  as 
expressed  so  insistently  by  the  courts  be  correct,  then  in  later 
decisions  they  have  no  right  to  disregard  it.  If  this  view  of 
the  status  of  judicial  construction  be  unsound,  then  the  courts 
should  have  the  courage  to  say  so  and  put  an  end  to  the 
controversy  at  once. 

Having  satisfied  ourselves  that  the  courts  have  laid  down 
the  rule  as  above  stated,  we  will  now  proceed  to  examine 
cases  where 

B.  The  courts  have,  in  fact,  treated  the  judicial  interpretation 
of  state  statutes  by  state  courts,  as  being  the  lazv,  not  merely  the 
interpretation  of  the  lazv. 

The  best  known  group  of  cases  which  support  the  state- 
ment just  given,  is,  obviously,  that  class  of  which  Gelpckev. 
Dubuque  is  the  type.  As  these  cases  are  all  very  similar  in 
the  facts  involved,  a  few  general  observations  may  be  made 
which  will  apply  equally  to  all.  In  the  first  place  they  are 
all  cases  which  originated  in  the  circuit  courts,  jurisdiction 
being  obtained  by  virtue  of  diverse  citizenship.  In  the  second 
place,  in  each  of  this  line  of  cases,  a  statute  previously  adjudged 
valid  by  a  state  supreme  court  had  been  held  void  by  the  same 
tribunal.     This  question  was  squarely  in  issue.     Can  rights  be 

'  14  How.  488  (1S52). 


GELPCKE  VERSUS  DUBUQUE.  37 

acquired  under  a  statute  afterwards  declared  to  be  void?  The 
courts  uniformly  answered  the  question  in  the  affirmative  pro- 
vided a  state  court  had  previously  held  the  act  vahd.  They 
also  said,  that  when  those  rights  thus  acquired,  were  contract 
rights,  the  federal  courts  would  protect  them  by  virtue  of  the 
clause  in  the  Constitution  of  the  United  States,  forbidding  a 
state  to  pass  a  law,  impairing  the  obligation  of  contracts. 

One  of  the  earliest  cases  to  follow  Gelpcke  v.  Dubuque  was 
Havemeyer  v.  lozva  Co}     That  case  came  before  the  Circuit 
Court  of  the  United  States  for  the  District  of  Wisconsin,  and 
the  court  being  divided,  was  brought  to  the  Supreme  Court 
of  the  United  States  under  the  Act  of  Congress  of  April  29, 
1802.     The  legislature  of  Wisconsin  passed  an  act  author- 
izing   counties   to   issue    bonds.     The    executive   department 
classified   the   act  as  a  local  act,  which   took   effect   from  the 
date  of  its  passage.     This  view  was  affirmed  by  the  Supreme 
Court  of  Wisconsin.     By  later  decisions  the  Supreme  Court 
of  Wisconsin  decided  that  this  act  was  general  in  nature,  was 
not  effective  until  published,  and  that  the  bonds  in  question 
which  had  been  issued  before  publication,  were  void.     The 
Supreme  Court  of  the  United  States,  following  and  approving 
Gelpcke  V.  Dubuque,  declared  that  the  obligation  of  the  con- 
tract should    be  protected,   although  the  Supreme  Court  of 
Wisconsin  could  construe  their  laws  as  they  pleased.     The 
court  unanimously  speaking  through  Mr.  Justice  Swayne,  say 
these    decisions    "being    long    posterior    to    the    time    w^hen 
the  securities  were  issued,  they  can  have  no  effect  on  our  de- 
cision and  may  be  laid  out  of  view.     We  can  look  only  to 
the   condition  of  things  when   they  were   sold.     That  brings 
them  within   the   rule  laid  down  by  this  court,  in  Gelpcke  v. 
City  of  Dubuqzie.     In   that   case  it  was   held,  that  if  the   con- 
tract, when  made,  was  valid  by  the  constitution  and   laws  of 
the  state,  as  then   expounded  by  the  highest  authority  whose 
duty  it  was  to  administer  them,  no  subsequent  action  by  the 
legislature  or  judiciary  can  impair  its   obligation.     This  rule 
was   established   upon   the   most  careful  consideration.     We 

1  3  Wall,  294  (1865),  Swayne,  J. 


3S  SOME  RECENT  CRITICISM  OF 

tliink  it  rests  upon  a  solid  fouiuhition,  and  wo  feci  no  dispo- 
sition to  depart  from  it." 

Two  more  cases  ver)'  similar  botli  in  facts  antl  decision  fol- 
lowed llavcvicyer  v.  Icnva  Co.  during  the  next  three  years: 
TIioin/>son  v.  Lee  Co.,^  and  Lcc  Co.  v.  Rogers."^  Mr.  Justice 
Davis  dcli\'ered  the  opinion  in  the  former  and  Mr.  Justice 
Nelson  in  the  latter,  with  no  dissent  in  either  case. 

Shortly  after  this  came  the  unfortunate  decision  in  Biita  v. 
City  of  I\Iuscatinc?  In  this  case  an  act  had  been  passed  by 
the  legislature  of  Iowa  authorizing  the  issuance  of  certain 
bonds.  Before  any  judicial  decision  as  to  the  validity  of  the 
statute,  as  far  as  appeared,  the  bonds  in  question  were  issued. 
A  subsequent  decision  of  the  Supreme  Court  of  Iowa  de- 
clared the  act  unconstitutional.  The  court  refused  to  follow 
the  state  decision,  alleging  that  its  effect  was  to  impair  the 
obligation  of  the  contract.  Mr.  Justice  Miller  dissented, 
making  use  of  very  strong  language  not  unmixed  with  sar- 
castic allusions  to  the  opinion  of  the  majority.  The  Chief 
Justice  concurred  in  the  dissent.  Whether  or  not  the  other 
cases  discussed  are  sound  on  principle,  it  is  submitted  that  this 
decision  went  beyond  the  bounds  of  authority.  We  have 
examined,  as  we  believe,  most  of  the  leading  cases  on  this 
subject,  and,  so  far  as  we  are  able  to  judge,  no  other  case  has 
taken  the  position  taken  by  Mr.  Justice  Swayne  and  the 
majority  of  the  court  in  this  case.  Gelpckc  v.  Dubuqite  z.x\<\ 
the  line  of  cases  following  it,  decide  only  this  :  That  whenever 
a  Supreme  Court  of  a  state  has  adopted  a  construction  for  a 
particular  local  law,  such  construction  becomes  part  of  the 
local  law.  The  court  then  by  changing  its  view,  practically 
amends  the  law.  Such  an  amendment  can  no  more  have  a 
retroactive  effect  than  can  an  amendment  passed  by  the  legis- 
lature. This  limitation  does  not,  in  either  case,  affect  the 
amendment  as  to  the  future.  Similarly,  the  bankrupt  laws 
were  held  valid  as  to  the  future,  but  not  in  their  application 
to  existing  contracts.     The  court  recognizes  the  right  and  the 


'  3  Wall,  327  (1865).  Davis,  J. 
*  7  Wall,  181  (1868),  Nelson,  J. 
»  8  Wall,  575  (1869),  Swayne,  J. 


GELPCKE  VERSUS  DUBUQUE.  39 

duty  of  the  state  court  to  change  its  ruHng,  if  necessary;  it 
merely  protects  existing  contracts. 

This  is  very  far  from  saying,  that  one  who  reHes  on  his  own 
construction  of  a  statute,  will  be  protected  against  the  conse- 
quences of  his  own  error. 

Until  the  state  court  has  once  acted,  there  can  be  no  im- 
pairment by  construction.  When  the  law  is  passed,  contract 
rights  acquired  under  it  are  protected  from  legislative  repeal. 
When  a  construction  of  a  statute  has  once  been  made,  con- 
tracts made  on  the  faith  of  it  are  similarly  protected  from 
judicial  action.     That  is  the  limitation  of  the  doctrine. 

May  it  not  be  supposed  that  Mr.  Justice  Swayne  leaned  in 
this  case  too  far  one  way,  perhaps  to  counterbalance  Mr.  Jus- 
tice Miller,  who  by  the  vigor  of  his  language  in  the  dissenting 
opinion,  conveys  to  us  the  unavoidable  impression  that  a  dis- 
cussion of  some  warmth  had  been  precipitated.  But  however 
that  may  have  been,  we  submit  with  great  deference  that  this 
decision  stands  absolutely  alone,  and  cannot  be  supported, 
either  by  reason  or  authority. 

In  Township  of  Pine  Grove  v.  Talcott}  the  facts  were  similar 
to  Gelpcke  v.  Dubuque.  Mr.  Justice  Swayne,  in  delivering  the 
opinion,  again  suffers  himself  to  discuss  the  question  as  to  the 
constitutionality  of  the  state  statute.  He  carefully  goes  over 
the  question  as  to  its  validity  or  invalidity.  It  is  submitted 
that  the  court  had  no  right  whatever  to  consider  this  question. 
It  would  be  absurd  as  well  as  intolerable  to  imagine  for  one 
moment  that  the  federal  court  could  force  a  state  to  adopt  for 
the  future  a  different  construction  from  that  which  its  courts 
had  settled  upon.  The  argument,  that  the  states  should  be 
prevented  from  putting  a  palpably  wrong  construction  upon 
their  statutes,  cannot  be  supported.  The  obligations  of  a  state 
are  binding  only  upon  its  conscience.^  To  say  that  the  federal 
court  has  the  right  to  force  the  state  to  adopt  a  "reasonable 
construction  "  of  a  law,  when  there  is  no  power  to  prevent  it 
from  repudiating  its  obligations  absolutely,  is  plainly  untenable. 
As  in  Gelpcke  v.  Dubuque,  near  the  end  of  his   opinion,  Mr. 

»  19  Wall,  666  (1873),  Swayne,  J. 

'^  Hare  on  Constitutional  Law,  Lecture  XXXII. 


40  SOMK  KKCKNT  CRITICISM   OF 

Justice  Swaync  ij[ivcs  expression  to  tlie  real  ground  of  the 
decision.  lie  says,  "Tlie  national  Constituticni  forbids  the 
states  to  pass  laws  impairing  the  obligation  of  contracts.  In 
cases  properly  before  us,  that  end  can  be  accomplished  un- 
warrantably, no  more  by  judicial  decisions  than  by  legislation. 
Were  we  to  yield  in  cases  like  this  to  the  authority  of  the 
decisions  of  the  respective  states,  we  should  abdicate  the  per- 
formance of  one  of  the  most  important  duties  with  which  this 
tribunal  is  charged,  and  disappoint  the  wise  and  salutary  policy 
of  the  framers  of  the  Constitution  in  providing  for  the  creation 
of  an  independent  federal  judiciary.  The  exercise  of  our 
appellate  jurisdiction  would  be  but  a  solemn  mockeiy." 

Douglas  V.  County  of  Pike^  contains  one  of  the  clearest 
statements  of  this  view  that  has  been  written.  This  case  came 
up  on  a  writ  of  error  to  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Missouri.  It- was  an  action  on 
three  hundred  and  twenty-one  coupons,  detached  from  bonds 
issued  by  the  County  of  Pike,  Missouri.  The  county  had 
been  authorized,  by  an  act  of  the  legislature,  to  issue  the 
bonds  in  question.  This  act  had  been  repeatedly  construed 
to  be  constitutional,  by  the  highest  court  of  the  state.  Long 
after  the  issuance  of  the  bonds,  another  decision  of  the  Su- 
preme Court  of  Missouri  held  the  act  to  be  unconstitutional. 
Mr.  Chief  Justice  Waite  uses  the  following  language:  "The 
true  rule  is  to  give  a  change  of  judicial  construction  in  respect 
to  a  statute,  the  same  effect  in  its  operation  on  contracts  and 
existing  contract  rights,  that  would  be  given  to  a  legislative 
amendment ;  that  is  to  say,  make  it  prospective  but  not  retro- 
active. After  a  statute  has  been  settled  by  judicial  construc- 
tion, the  construction  becomes,  so  far  as  contract  rights 
acquired  under  it  are  concerned,  as  much  a  part  of  the  statute 
as  the  text  itself;  and  a  change  of  decision  is,  to  all  intents 
and  purposes,  the  sa^ne  in  its  effect  on  contracts  as  an  amend- 
ment of  the  law  by  means  of  a  legislative  enactment.  So  far  as 
this  case  is  concerned,  wc  have  no  hesitation  in  saying  that 
the   rights   of  the  parties  are  to   be  determined  according  to 

'  loi  U.  S.  677  (1879),  Waite,  C.  J. 


GELPCKE  VERSUS  DUBUQUE.  4 1 

the  law  as  it  was  judicially  construed  to  be,  when  the  bonds 
in  question  were  put  upon  the  market  as  commercial  paper. 
We  recognize  fully,  not  only  the  right  of  a  state  court,  but 
its  duty,  to  change  its  decisions  whenever  in  its  judgment  the 
necessity  arises.  It  may  do  this  for  new  reasons,  or  because 
of  a  change  of  opinion  in  respect  to  old  ones,  and  ordinarily 
we  will  follow  them,  except  so  far  as  they  affect  rights  vested 
before  the  change  was  made.  ...  If  the  township  aid  act 
had  not  been  repealed  by  the  new  constitution  of  1875,  which 
took  away  from  all  municipalities  the  power  of  subscribing  to 
the  stock  of  railroads,  the  new  decisions  would  be  binding  in 
respect  to  all  issues  of  bonds  after  they  were  made ;  but  we 
cannot  give  them  a  retroactive  effect  without  impairing  the  obli- 
gation of  contracts  long  before  eiitered  into.  This  we  feel  02ir- 
selves  prohibited  by  the  Constitution  of  the  United  States  from 
doing."  Unlike  the  opinions  of  Mr.  Justice  Swayne  in  similar 
cases,  there  is  here  no  ambiguity  as  to  the  ground  of  the 
decision.  In  Andersoji  v.  Santa  Anna^  Mr.  Justice  Harlan 
quotes  the  above  language  of  Mr.  Chief  Justice  Waite  with 
approval  and  emphatically  reasserts  the  same  doctrine. 

Lojnsiana  v.  Pilsbury'^  came  up  by  a  writ  of  error  to  the 
Supreme  Court  of  the  State  of  Louisiana.  The  case  came  up 
under  the  25th  section  of  the  judiciary  act ;  the  facts  involved 
a  repudiation  of  bonded  obligations  by  the  City  of  New  Or- 
leans. This  had  been  brought  about  by  means  both  of  a 
change  of  construction  of  existing  statutes,  and  by  a  later  act 
passed  by  the  legislature  of  the  State  of  Louisiana,  and  which 
was  upheld  by  the  decision  reviewed.  The  doctrine  that  states 
are  prohibited  by  the  federal  clause  from  impairing  the  obli- 
gation of  contracts  by  state  decisions,  as  well  as  by  state 
statutes,  was  carefully  considered.  Mr.  Justice  Field  with  no 
dissent  dehvered  the  opinion  of  the  court.  Beginning  on 
page  294, the  court  say,  "The  exposition  given  by  the  highest 
tribunal  of  a  state  must  be  taken  as  correct,  so  far  as  contracts 
made  under  the  act  are  concerned.  Their  validity  and  obli- 
gation cannot  be  impaired  by  any  subsequent  decision  altering 

'  116  U.  S.  356  (1885),  Harlan,  J. 
2  105  U.  S.  278  (1881),  Field,  J. 


4-  SOMK  KlXKNr  CRITICISM   OF 

tlie  consti  uctioii.  Tliis  doctiinc  ap[)lics  as  well  to  tiic  con- 
struction of  a  provision  of  the  organic  law,  as  to  the  construc- 
tion of  a  statute.  The  construction,  so  far  as  contract  obli- 
gations incurred  under  it  are  concerned,  constitutes  a  part  of 
the  law  as  much  as  if  embodied  in  it.  So  far  does  this 
doctrine  c.Ktend,  that  when  a  statute  of  two  states,  expressed 
in  the  same  terms,  is  construed  differently  by  the  highest 
courts,  the)'  are  treated  by  us  as  different  laws,  each  embody- 
ing the  particular  construction  of  its  own  state,  and  enforced 
in  accordance  with  it  in  all  cases  arising  under  it." 

The  discussion  of  this  line  of  cases  would  be  incomplete 
did  we  not  include  the  Pennsylvania  case  of  Rcfy  v.  T/ie  Gas 
Co.^  decided  in  1890.  In  this  case  the  plaintiff  in  error 
claimed  that  a  contract,  which  he  had  entered  into,  would  be 
impaired  were  the  Supreme  Court  of  Pennsylvania  to  follow 
its  own  ruling  on  a  question  of  general  law  and  adjudge  his 
contract  void.  He  based  his  contention  upon  the  fact  that 
previous  decisions  of  the  Supreme  Court  of  Pennsylvania  had 
taken  a  different  view  of  the  law,  and  that  he  had  contracted 
on  the  faith  of  such  ruling.  The  court  refused  to  adopt  his 
view.  They  admitted  the  justice  of  his  contention  in  all  cases 
where  such  change  of  decision  had  been  a  change  in  the  con- 
struction of  a  statute,  but  denied  its  application  in  the  present 
case,  because  no  question  of  the  construction  of  a  statute  was 
involved. 

The  opinion  clearly  points  out  the  two  classes  of  cases 
and  the  distinction  between  them.  The  opinion  of  the  court 
was  delivered  by  Mr.  Justice  Clark  with  no  dissent.  On  page 
590  he  says,  "The  courts  of  highest  authority  of  all  the 
states  and  of  the  United  states  are  not  infrequently  called  upon 
to  change  their  rulings  upon  questions  of  highest  importance. 
In  so  doing,  the  doctrine  is  not  that  the  law  is  changed,  but 
that  the  court  was  mistaken  in  its  former  decision,  and  that 
the  law  is,  and  really  always  was,  as  it  is  expounded  in  the 
later  decision  upon  the  subject.  The  members  of  the  judiciary 
can   in   no   sense  be  said  to  make  or  change  the  law ;  they 

•  13S  Pa.  591  {1890),  Clark,  J. 


GELPCKE  VERSUS  DUBUQUE.  43 

simply  expound  it  and  apply  it  to  individual  cases.  To  this 
general  doctrine  there  is  one  well-established  exception,  as  folloivs: 
^ After  a  statute  has  been  settled  by  judicial  coiistruction,  the 
construction  becomes,  so  far  as  contract  rights  are  concerned,  as 
much  a  part  of  the  statute,  as  the  text  itself,  and  a  change  of 
decision  is  to  all  intents  and  purposes  the  same  in  effect  on  con- 
tracts as  an  amendment  of  the  law  by  means  of  a  legislative 
enactment.'  " 

The  court  then  cites  with  approval  Douglas  v.  Co.  of  Pike, 
Anderson  v.  Santa  Antia,  Gelpcke  v.  Dubuque,  etc.,  and 
quoting  at  length  from  the  opinion  in  Ohio  Trust  Co.  v. 
Debolt,  thus  sums  up  the  law  :  "This  ruling  applies,  it  will  be 
observed,  not  to  the  general  law,  common  to  all  the  states, 
but  to  the  laws  of  the  state  'as  expounded  by  all  the  depart- 
ments of  its  government,'  and  it  is  held  that  contracts  valid 
by  these  laws  may  not  be  impaired  'either  by  subsequent 
legislation  or  by  the  decisions  of  its  courts  altering  their  con- 
struction. The  reference  is,  of  course,  to  the  statute  law.'  " 
In  addition  a  few  cases  which  lay  down  the  same  principle  are 
cited  in  the  note.^ 

In  connection  with  this  phase  of  the  subject,  it  is  thought 
profitable  to  refer  to  another  class  of  decisions  quite  similar  to 
the  one  just  discussed.  Reference  is  here  made  to  that  large 
body  of  cases,  where  the  act  of  the  state  embodies  a  contract 
made  between  the  state  and  an  individual.  To  take  a  typical 
case.  The  legislature  of  the  state  passes  a  law  which  confers 
contract  rights  upon  an  individual  or  upon  a  class  of  indi- 
viduals. The  terms  of  the  act  are  complied  with  by  these 
individuals,  who  thereby  enter  into  a  contract  with  the  state. 
The  state  then  passes  another  act  which  impairs  the  obliga- 

'  The  City  v.  Lamson,  9  Wall,  477  (1869);  County  of  Leavenworth  v. 
Barnes,  94  U.  S.  70  (1876);  Boyd  v.  Alabama,  94  U.  S.  645  (1876);  Town 
of  S.  Ottawa  v.  Perkins,  94  U.  S.  261  (1876);  County  v.  Douglas,  105  U. 
S.  728  (1881),  Waite,  C.  J.  ;  Green  v.  County  of  Conness,  109  U.  S.  104, 
Bradley,  J.  ;  Taylor  v.  Ypsilanti,  105  U.  S.  60  (iSSr),  Harlan,  J. ;  Union 
Bank  v.  Board,  90  Fed.  7  (1898)  ;  Louisville  T.  Co.  v.  Cincinnati,  76 
Fed.  296  (1896);  Loeb  v.  Trustees,  91  Fed.  37  (1899);  Wilson  v.  Perrin, 
II  C.  C.  A.  66  and  note  (1894),  Lurton,  J.  ;  Hill  v.  Hite,  29  C.  C.  A.  549 
and  note  (1898),  Phillips,  J. 


44  SOMK   KKCKNr  CKI  TICISM  l)F 

tion  o\'  the  contract.  The  State  Supreme  Court  upholds  the 
latter  act  on  tlie  grouiul  that  the  former  act  conferred  no  con- 
tract rights,  and  since  tliere  was  no  contract,  there  could  be 
no  impairment.  In  such  cases  the  Supreme  Court  of  the 
United  States  claims  the  right  to  investigate  for  itself  and 
determine  whether  in  fact  a  contract  exists,  and  then  to  pro- 
tect the  obligation  of  that  contract  from  impairment.  These 
cases  are  sometimes  referred  to  as  laying  down  the  principle 
that  the  federal  courts  have  the  right  to  construe  the  state 
law  whenever  that  law  embodies  in  its  terms  a  contract.  This 
we  believe  to  be  too  broad.  In  such  cases  the  court  claims 
the  right  to  determine  for  itself  whether  a  contract  exists  ;  but 
it  does  not  have  the  right  to  decide  as  to  the  validity  or  in- 
validity of  the  act.  It  is  submitted  that  while  embodied  in 
the  same  language,  the  act  and  the  contract  which  it  creates, 
are  two  different  things.  The  act  cannot  of  itself  be  a  con- 
tract. Acceptance  of  its  terms  by  those  to  whom  the  offer 
is  made  is  a  condition  precedent.  The  contract  is  a  I'clation 
between  the  state  and  the  individual.  That  relation  the  court 
may  investigate.  To  hold  otherwise  would  be  to  deprive  the 
federal  courts  of  their  appellate  power ;  for  what  would  be 
easier  for  the  state  court  than  to  declare  in  every  instance  that 
the  contitict  itself  being  void,  there  could  be  no  impairment. 
The  federal  courts,  having  acquired  jurisdiction,  always  have 
the  right  to  determine  whether  a  contract  in  fact  exists,  and 
then  to  protect  that  contract  from  an  impairment  of  its  obli- 
gation ;  they  necessarily  have  this  power  as  an  appropriate 
and  necessary  means  of  enforcing  the  constitutional  prohibi- 
tion, with  which  duty  they  are  intrusted.  But  at  the  same 
time  the  question  as  to  the  constitutionaHty  of  the  act  upon 
which  the  contract  is  based,  is  a  question  into  which  the 
federal  courts  cannot  inquire.  The  question  of  the  power  of 
the  legislature  to  pass  the  act  is  one  thing ;  the  question  as 
to  whether  it  actually  confers  contract  rights  is  another.  It 
is  obvious  that  on  principle  this  conclusion  must  be  reached, 
for  how  can  the  subject  matter  of  an  act  affect  the  power,  or 
rather  the  lack  of  power,  of  the  federal  courts  to  construe  it? 
We  have  shown  that  the  power  does  not  exist.      An  incident 


GELPCKE  VERSUS  DUBUQUE.  45 

of  the  subject  matter  of  the  act  cannot  confer  it.  It  is  believed 
that  the  cases  will  bear  out  this  distinction,  and  it  is  earnestly 
insisted  that  on  principle  no  other  conclusion  can  be  supported. 

The  earliest  leading  case  of  this  class  is  State  Bank  of  Ohio 
V.  Knoop}  Ohio  passed  an  act  in  1845,  by  which  it  was  pro- 
vided for  the  organization  of  state  banks.  Among  other 
privileges,  it  was  provided  that  such  banks  should  be  allowed 
to  pay  the  state  six  per  cent,  of  their  net  profits,  in  lieu  of 
taxes.  "  This  compact  was  accepted,  and  on  the  faith  of  it 
fifty  banks  were  organized,  which  are  still  in  operation.  Up 
to  the  year  1837,  I  believe,  the  banks,  the  profession  and  the 
bench,  considered  this  as  a  contract  and  binding  upon  the 
state  and  upon  the  banks.  For  more  than  thirty-five  years 
this  mode  of  taxing  the  dividends  of  banks  had  been  sanc- 
tioned in  the  State  of  Ohio."  In  185 1  an  act  was  passed, 
providing  for  the  taxation  of  these  banks.  The  state  bank 
of  Ohio  resisted  payment  on  the  ground  that  the  later  act 
was  unconstitutional,  because  it  impaired  the  obligation  of  its 
contract.  The  Ohio  Supreme  Court  decided  that  the  former 
act  did  not  create  contract  rights,  and  on  that  ground  upheld 
the  later  act.  The  question  of  the  construction  of  the  later 
act  was  in  no  way  involved.  Before  we  attempt  to  interpret 
the  court's  language,  let  us  note  exactly  what  questions  were 
before  it.  In  the  first  place,  as  we  have  seen,  an  act  had  been 
passed  which  offered  certain  immunities  to  state  banks.  The 
state  court  decided  two  questions  : 

(i)  That  under  the  constitution  of  Ohio,  the  general  as- 
sembly had  no  power  to  pass  such  an  act. 

(2)  That  even  if  the  act  were  valid,  no  contract  rights  were 
created  by  the  particular  relation  here  estabhshed  between  the 
state  and  the  bank. 

On  these  two  grounds,  either  of  which  was  sufficient,  the 
state  court  held  that  there  could  be  no  impairment,  since 
there  was  no  contract.^ 

As  we  have  pointed  out,  the  Supreme  Court  of  the  United 
States  has  no  right  to  consider  the  first  question ;   the  state 

1  16  How.  391  (1853),  McLean,  J. 

2  Debolt  V.  Ohio  Life  &  Trust  Co.,  i  Ohio,  564. 


46  SOMF.  RF.CKNT  CUITICISM  OF 

court's  judL:^nicnt  as  to  the  validity  of  tlic  state's  own  law,  in 
reference  to  the  state  constitution,  is  conchisive.  That  the 
Supreme  Court  couUi  investigate  the  secontl  cjuestion,  there 
can  be  no  doubt,  l^ut  it  is  plain  that  to  reach  the  conclusion 
which  they  did,  the  Supreme  Court  must  have  decided 

(i)  That  the  law  of  1845,  as  far  as  this  contract,  at  least, 
is  concerned,  was  a  valid  law. 

(2)  That  a  binding  contract  was  created  between  the  state 
and  the  bank. 

That  the  court  had  the  power  to  decide  the  second  point  is 
conceded.  That  they  had  not  the  power  to  decide  the  first 
question  in  the  abstract  is  emphatically  asserted.  That  in 
this  case  they  had  the  right  and  the  duty  laid  upon  them  to 
protect  this  contract,  if  one  existed,  is  believed  to  be  correct, 
but  the  only  legitimate  manner  in  which  to  do  this,  was  to 
prevent  the  state  court  in  this  case  from  applying  a  later  con- 
struction, when  the  contract  had  been  entered  into  upon  the 
faith  of  a  former  construction.  The  question  then  arises,  had 
the  state  court  of  Ohio  formerly  held  this  act  valid,  now  con- 
strued by  it  to  be  void.  We  gain  little  or  no  enlightenment 
upon  this  point  by  an  examination  of  the  opinions  in  Debolt 
V.  The  Insura?ice  Co.^  but  from  the  language  of  Mr.  Chief 
Justice  Taney  in  the  same  case  when  it  came  before  the  Su- 
preme Court  of  the  United  States,  we  should  infer  that  the 
state  court  had  formerly  construed  the  act  to  be  a  valid  exer- 
cise of  constitutional  power.^  The  same  thought  is  conveyed 
by  Mr.  Justice  McLean  in  the  sentence  quoted  above,  when 
he  declares  that  "  for  more  than  thirty-five  years  this  mode  of 
taxing  had  been  sanctioned  in  the  State  of  Ohio,  by  the  pro- 
fession, the  banks  and  the  bench." 

On  the  principle  that  a  state  construction  of  a  state  statute, 
or  constitution,  becomes  a  part  of  the  law,  and  contract  rights 
acquired  under  it  cannot  thereafter  be  divested,  we  can  sup- 
port the  conclusion  in  this  case.  That  Mr.  Chief  Justice 
Taney  did  support  the  case  on  that  ground,  is  evident  from 

'  Supra,  p.  45. 

'  See  opinion  of  Taney,  C.  J.,  Grier  with  him,  Ohio  Life  Ins.  &  Trust 
Co.  V.  Debolt,  16  How.  at  p.  431. 


GELPCKE  VERSUS  DUBUQUE.  4/ 

an  examination  of  his  opinion  ;  but  Mr.  Justice  McLean,  who 
delivered  the  opinion  of  the  court,  did  not  consider  this  point 
in  terms.  Indeed,  his  remarks  upon  the  question  we  are  dis- 
cussing do  not  seem  entirely  clear.  On  page  390  he  says, 
"  The  rule  observed  by  this  court  to  follow  the  construction 
of  the  statute  of  the  state  by  its  Supreme  Court,  is  strongly 
urged.  This  is  done  when  we  are  required  to  administer  the 
laws  of  the  state.  The  established  construction  of  a  statute 
of  the  state  is  received  as  a  part  of  the  statute.  But  we  are 
called  in  the  case  before  us,  not  to  carry  into  effect  a  law  of 
the  state,  but  to  test  the  validity  of  such  a  law  by  the  Consti- 
tution of  the  Union.  We  are  exercising  an  appellate  jurisdic- 
tion. The  decision  of  the  Supreme  Court  of  the  state  is 
before  us  for  revision,  and  if  their  construction  of  the  contract 
in  question  impairs  its  obligation,  we  are  required  to  reverse 
their  judgment." 

It  will  be  noted  here  that  the  eminent  justice  declares  that, 
in  ordinary  cases,  the  "  established  construction  of  a  statute 
of  the  state  is  received  as  a  part  of  the  statute."  The  only 
construction  of  the  state  court  which  was  under  consideration, 
was  their  construction  of  the  law  of  1845.  Mr.  Justice  McLean 
then  continues,  "  But  we  are  called  in  the  case  before  us,  not 
to  carry  into  effect  a  law  of  the  state,  but  to  test  the  validity 
of  such  a  law  by  the  Constitution  of  the  Union."  What  law 
does  he  refer  to  in  this  sentence  ?  He  cannot  mean  the  law 
of  185 1,  because  there  was  no  question  as  to  its  construction 
before  the  court,  and  no  one  had  thought  of  urging  that  its 
construction  by  the  state  court  should  be  followed,  for,  as  a 
matter  of  fact,  the  state  court  had  not  construed  it.  He  can- 
not mean  the  law  of  1845,  because  it  could  not  impair  a  con- 
tract entered  into  after  its  passage.  If  the  rest  of  his  opinion 
were  at  all  consistent  with  this  view,  we  should  say  that  he 
must  have  referred  by  "  law  "  to  the  later  construction  of  the 
act  of  1845,  for  that  was  what,  in  reality,  did  impair  the 
obligation  of  the  contract.  Indeed,  by  the  following  sen- 
tence, he  declares  this  to  be  the  fact:  "The  decision  of 
the  Supreme  Court  of  the  state  is  before  us  for  revision, 
and   if  their   construction  of  the    contract   in    question  impairs 


48  SOMK   KF.Cr.NT  CKlTinSM  OF 

its  oblii^ation,  \vc  arc  reciuiicil  to  reverse  their  jucl<;nicnt." 
He  says  in  one  sentence,  "we  are  testing  the  validity  of 
a  law;"  in  the  next  he  says,  "we  are  judging  the  validity 
of  a  construction  of  a  contract."  The  conclusion  seems 
clear  tiiat  he  considered  the  "  C(~)nstruction  "  to  be  the 
"  law." 

It  is  submitted  that  by  "  construction  of  the  contract  "  here, 
is  really  meant  the  construction  of  the  act  of  1845.  The 
learned  justice  does  not  seem  to  distinguish  the  two,  and  from 
the  context  we  must  infer  that  such  was  his  meaning.  More- 
over, in  no  sense  can  a  construction  of  a  contract  be  said  to 
impair  its  obligation.  If  this  were  conceded,  every  time  a 
court  adjudged  a  contract  void  it  would  impair  its  obligation. 
But  this  is  not  impairment.  In  such  a  case  one  merely  enters 
into  a  relation,  which  he  conceives  to  be  a  contract,  but  in 
which  conception  he  has  fallen  into  error.  Mr.  Cooley,  in  his 
work  on  Constitutional  Law,^  says,  "no  promise  or  assurance 
can,  therefore,  constitute  a  contract,  unless  the  law  lends  its 
sanction."  It  follows  that  there  can  be  no  impairment  of  the 
obligation  of  the  contract,  unless  there  has  been  a  change  in 
the  law.  In  all  other  cases  it  is  merely  a  mistaken  conception 
as  to  what  the  law  is. 

We  are  able  to  place  upon  these  words  of  Mr.  Justice  Mc- 
Lean no  construction  except  this  :  that  the  reinterprctation  of 
the  act  of  1845,  by  the  state  court,  was  a  law  impairing  the 
obligation  of  the  contract,  and  it  was  for  that  reason  that  the 
Supreme  Court  refu.sed  to  follow  the  state  decision,  which 
applied  that  reinterprctation  to  the  case  before  it. 

But  however  this  may  have  been,  there  is  no  question  of 
the  attitude  of  some  of  the  other  justices.  Mr.  Chief  Justice 
Taney,  concurring,  announces  that  his  opinion  is  embodied  in 
his  opinion  delivered  in  O/iio  Insurance  Co.  v.  DeboltJ-m  which 
case,  as  we  will  show  later,  he  distinctly  places  his  concurrence 
on  the  principle  we  have  suggested. 

Mr.  Justice  Catron,  dissenting,  clearly  recognizes  the  act  of 
1845,  and   the   contract  created    under  it,  to  be  two  separate 

'  P-  313- 

'  Supra,  p.  46. 


GELPCKE  VERSUS  DUBUQUE.  49 

and  distinct  things.  He  adopts  the  opinion  of  Mr.  Justice 
Campbell,  that  there  was,  in  fact,  no  contract.  He  then  goes 
on  to  discuss  the  question  of  the  power  of  the  state  to  pass 
exemption  laws,  and  then  says  :  "  General  principles,  how- 
ever, have  little  application  to  the  real  question  before  us, 
which  is  this  :  Has  the  constitution  of  Ohio  withheld  from  the 
legislature  the  authority  to  grant  by  contract  with  individuals 
the  sovereign  power,  and  are  we  bound  to  hold  her  constitu- 
tion to  mean,  as  her  Supreme  Court  has  construed  it  to  mean? 
If  the  decisions  in  Ohio  have  settled  the  question  in  the 
affirmative,  that  the  sovereign  political  power  is  not  the  sub- 
ject of  an  irrepealable  contract,  then  few  will  be  so  bold  as  to 
deny  that  it  is  our  duty  to  conform  to  the  construction  they 
have  settled ;  and  the  only  objection  to  conformity,  that  I 
suppose  could  exist  with  any  one  is,  that  the  construction  is 
not  settled."  He  then  shows  the  construction  to  be  settled, 
declares  it  to  be  his  belief  that  the  law  is  invalid,  and  that  no 
contract  rights  were  created  even  it  were  valid,  and  thus  con- 
cludes :  "  But  if  I  am  mistaken  in  both  these  conclusions, 
then,  I  am  of  opinion,  that  by  the  express  provisions  of  the 
constitution  of  Ohio,  of  1802,  the  legislature  of  that  state  had 
withheld  from  its  powers  the  authority  to  tie  up  the  hands  of 
subsequent  legislatures  in  the  exercise  of  the  powers  of  taxa- 
tion, and  this  opinion  rests  on  judicial  authority  that  this  court 
is  bound  to  follow ;  the  Supreme  Court  of  Ohio  having  held, 
by  various  solemn  and  unanimous  decisions,  that  the  political 
power  of  taxation  was  one  of  those  reserved  rights  intended 
to  be  delegated  by  the  people  to  each  successive  legislature, 
and  to  be  exercised  alike  by  every  legislature  according  to  the 
instructions  of  the  people.  .  .  .  Whether  this  construction 
given  to  the  state  constitution  is  the  proper  one,  is  not  a  sub- 
ject of  inquiry  in  this  court ;  it  belongs  exclusively  to  the 
state  courts,  and  can  no  more  be  questioned  by  us,  than  .state 
courts  and  judges  can  question  our  construction  of  the  Con- 
stitution of  the  United  States." 

This  opinion  is  quoted  somewhat  at  length  to  show  that 
Mr.  Justice  Catron  draws  the  distinction  contended  for.  He 
does  not  deny  the  power  of  the  Supreme  Court  to  interpret 


50  SOME  RFXENT  CKITICISM  OF 

tlic  Contract  for  itself.  lie  iIck's  deny  its  power  to  decide  .as 
to  the  \alidity  of  the  act. 

Mr.  Justice  Daniel  concurs  with  Canipbcll,  wlio  tlissents  on 
the  ground  tliat  there  was  no  contract  created  by  the  accept- 
ance of  the  terms  of  the  act  by  the  bank. 

In  0/iio  Life  Insurance  and  Trust  Co.  v.  Dcbolt^  Mr.  Chief 
Justice  Taney  uses  the  following  language  (the  facts  were  as 
to  this  point  identical  with  Bank  v.  Knoop) :  "  This  brings 
me  to  the  question  more  immediately  before  the  court :  Did 
the  constitution  of  Ohio  authorize  its  legislature,  by  contract, 
to  exempt  this  company  from  its  equal  share  of  the  public 
burdens,  during  the  continuance  of  its  charter?  The  Supreme 
Court  of  Ohio  in  the  case  before  us  decided  that  it  did  not. 
But  this  charter  was  granted  while  the  constitution  of  i8o2 
was  in  force,  and  it  is  evident  that  this  decision  is  in  conflict 
with  the  uniform  construction  of  that  constitution  during  the 
whole  period  of  its  existence.  It  appears  from  the  acts  of  the 
legislature,  that  the  power  was  repeatedly  exercised,  while 
that  constitution  was  in  force,  and  acquiesced  in  by  the  people 
of  the  state.  It  was  directly  and  distinctly  sanctioned,  by  the 
Supreme  Court  of  the  state,  in  the  case  of  the  StaU  v.  T/te 
Commercial  Bank  of  Cincinnati,  7  Ohio,  125. 

"And  when  the  constitution  of  a  state,  for  nearly  half  a 
century,  has  received  one  uniform  and  unquestioned  construc- 
tion by  all  the  departments  of  the  government,  legislative, 
•executive  and  judicial,  I  think  it  must  be  regarded  as  the  true 
one.  It  is  true  that  this  court  always  follows  the  decisions 
of  the  state  courts  in  the  construction  of  their  own  constitu- 
tions and  laws.  But  where  those  decisions  are  in  conflict,  this 
court  must  determine  between  them.  And  certainly  a  con- 
struction acted  on  as  undisputed  for  nearly  fifty  years  by 
every  department  of  the  government,  and  supported  by  judi- 
cial decision,  ought  to  be  sufficient  to  give  to  the  instrument 
a  fixed  and  definite  meaning.  Contracts  with  the  state  author- 
ities were  made  under  it.  And  upon  a  question  as  to  the 
validity  of  such  a  contract,  the  court,  upon  the  soundest  prin- 

'  Supra,  p.  46. 


GELPCKE  VERSUS  DUBUQUE.  5  I 

ciples  of  justice,  is  bound  to  adopt  the  construction  it  received 
from  the  state  at  the  time  the  contract  was  made.''  The  Chief 
Justice  then  refers  to  the  case  of  Rowan  v.  Runnels,  points 
out  that  the  principles  are  the  same  whether  jurisdiction  is 
acquired  by  virtue  of  diverse  citizenship  or  by  virtue  of  the 
subject  matter,  and  continues,  "  Indeed  the  duty  imposed  upon 
this  court  to  enforce  contracts  honestly  and  legally  made, 
would  be  vain  and  nugatory,  if  we  were  bound  to  follow  those 
changes  in  judicial  decisions,  which  the  lapse  of  time  and  the 
change  in  judicial  officers  will  often  produce.  The  writ  of 
error  to  a  state  court  would  be  no  protection  to  a  contract,  if 
we  were  bound  to  follow  the  judgment  which  the  state  court 
had  given,  and  which  the  writ  of  error  brings  up  for  revision 
here.  And  the  sound  and  true  rule  is,  that  if  the  contract, 
when  made,  was  vaUd  by  the  laws  of  the  state,  as  then  ex- 
pounded by  all  the  departments  of  its  government,  and  ad- 
ministered in  its  courts  of  justice,  its  validity  and  obligation 
cannot  be  impaired  by  any  subsequent  act  of  the  legislature 
of  the  state,  or  decisions  of  its  courts  altering  the  construction 
of  the  law." 

Having  thus  dealt  with  the  argument  that  the  court  must 
accept  the  state  court's  judgment  as  to  the  unconstitutionality 
af  the  statute,  Mr.  Chief  Justice  Taney  takes  up  the  question 
of  whether,  in  fact,  a  contract  had  been  created.  He  first  de- 
clares the  right  of  the  Supreme  Court  to  examine  "  the  in- 
strument claimed  to  be  a  contract,"  saying,  "  I  proceed,  there- 
fore, to  examine  whether  there  is  a^iy  contract  in  the  acts  of 
the  legislature  relied  on  by  the  plaintiff  in  error,  which  de- 
prives the  state  of  the  power  of  levying  upon  the  stock  and 
property  of  the  company  its  equal  share  of  the  taxes  deemed 
necessary  for  the  support  of  the  government,"  and  after  a 
careful  and  exhaustive  opinion,  announces  his  conclusion  that 
no  contract  existed,  and,  on  that  ground,  affirms  the  judg- 
ment. 

In  this  opinion  Grier  concurs  on  all  points.  Catron  con- 
curs in  the  conclusion  that  no  contract  had  been  created  ;  does 
not  dissent  from  the  doctrine  that  the  early  interpretation  of 
the  act  must  be  followed  in  cases  where  the  state  court  has 


52  SOM1-.  Ki:i-i-,Nr  CKirunsM  ov 

clianged  its  view,  but  cx[ircssos  his  o[)inioii  that  the  Ohio 
courts  had  not  prcviousl)-  passed  v\pon  the  constitutionaHty 
of  tlie  act. 

justices  Daniel  antl  Campbell  also  concur,  while  Justices 
McLean,  \Va}-nc,  Curtis  and  Nelson  dissent,  but  none  of  them 
attack  the  principle  that  the  state  court  must  be  prevented 
from  impairing  the  obligation  of  contracts  by  changing  the 
interpretation  of  state  statutes. 

In  interpreting  the  language  of  Mr.  Chief  Justice  Taney, 
wliere  he  says  the  construction  so  long  concurred  in  must  be 
accepted  as  the  true  one,  we  must  remember  that  the  consti- 
tution of  1802  was  no  longer  in  force,  and  that  no  question 
could  arise  as  to  future  construction.  The  later  decision  could 
operate  only  retroactively,  if  at  all.  This  gives  his  statement 
its  true  significance,  while  otherwise  it  would  appear  too  broad. 

These  two  decisions  have  been  examined  somewhat  at 
length,  in  order  that  there  maybe  no  misunderstanding  in  the 
further  investigation  of  this  line  of  cases,  as  to  the  points 
they  involve.  Bank  v.  Knoop  and  Insurance  Co.  v.  Dcbolt  are 
authority  for  the  following  principles  of  law  : 

( 1 )  When  a  state  legislature  passes  an  act  purporting  to  con- 
tain a  co)itract,  there  are  tivo  separate  and  distinct  problems 
presented. 

(a)  Is  the  act  constitutional? 

(b)  Has  a  contract  been  created? 

(2)  The  Uiuted  States  Court  have  the  right  to  examine  for 
themselves  whether  or  not  a  contract  has  been  created. 

(3)  The  Uftited  States  Court  Jiave  not  the  right  to  examine 
the  interpretation  by  the  state  court  of  the  constitutionality  (state) 
of  the  act,  but  must  accept  it  as  final. 

(4)  The  United  States  Court  {Jiaving  acqiured  jurisdiction  by 
virtue  of  the  fact  that  a  later  act  has  been  passed  winch  zvould 
impair  the  obligation  of  contracts  if  there  were  any),  may  refuse 
to  apply  a  decision  of  a  state  court,  adjudging  an  act  void,  in  a 
case  where  contract  rights  have  been  acqidred  under  a  former 
construction  by  that  court,  adjudging  it  valid. 

The  last  principle,  it  will  be  noted,  differs  only  from  the 
conclusions   drawn   from   the   class   of  cases    represented   by 


GELPCKE  VERSUS  DUBUQUE.  53 

Gelpcke  V.  Dubuque,  in  that  in  the  one  case  jurisdiction  is 
acquired  by  virtue  of  diverse  citizenship,  in  the  other,  by 
virtue  of  the  subject  matter.  The  principle,  obviously,  is  the 
same  in  each  case.  In  Farmers'  and  Mechanics'  Bank  of  Pa. 
v.  Smith^  Mr.  Chief  Justice  Marshall  made  the  following  very 
pointed  statement,  "that  this  case  was  not  distinguishable 
from  the  former  decisions  of  the  court  on  the  same  point, 
except  by  the  circumstance  that  the  defendant,  in  the  present 
case,  was  a  citizen  of  the  same  state  as  the  plaintiff,  at  the  time 
the  contract  was  made  in  that  state,  and  remained  such  at  the 
time  the  suit  was  commenced  in  its  courts.  But  these  facts 
made  no  difference  in  this  case.  The  Constitution  of  the 
United  States  was  made  for  the  whole  people  of  the  Union, 
and  is  equally  binding  on  all  the  courts  and  on  all  the 
citizens." 

The  cases  cited  in  the  note  will  be  found  to  support  the 
principle,  that  the  Supreme  Court  of  the  United  States  may 
always  construe  the  contract  of  the  state,  when  it  is  alleged 
that  the  obligation  of  that  contract  has  been  impaired  by  sub- 
sequent legislation.  While  most  of  them  do  not  deal  explicitly 
with  the  distinction  between  the  act  and  the  contract  which  it 
helps  to  create,  the  decisions  are  not  inconsistent  with  this 
principle.'^ 

In  McCullough  V.  The  Commo^nvealth  of  Virginia^  it  is  dis- 
tinctly pointed  out.  On  page  138  Mr.  Justice  Brewer  says; 
"  Neither  is  the  argument  a  sound  one.  It  ignores  the 
difference  between  the  statute  and  the  contract,  and  confuses 
the  two  entirely  distinct  matters  of  construction  and  validity. 
The  statute  precedes   the   contract.      Its   scope  and   meaning 

>6  Wheat.  131  (1821),  Marshall,  C.J. 

2 Jefferson  Branch  Bank  v.  Skelley,  i  Black.  436  (1861)  ;  Bridge  Pro- 
prietors V.  Hoboken  Co.,  i  Wall.  116  (1861)  ;  University  v.  The  People, 
99  U.  S.  309  (1878),  Miller,  J.  ;  Louisville  &  Nashville  R.  R.  v.  Palmes, 
109  U.  S.  244  (1883)  ;  Louisville  Gas  Co.  v.  Citizens  Gas  Co.,  115  U.  S. 
683  (1885),  Harlan,  J.  ;  Wright  v.  Nagle,  loi  U.  S.  791  ;  Mobile  &  Ohio 
R.  R.  V.  Tenn.,  153  U.  S.  487  (1893),  Jackson,  J.  ;  Huntingdon  t^.  Attrill, 
(146  U.  S.  657  ;  Bryan  v.  The  Board  of  Education,  151  U.  S.  639  (1893), 
Harlan,  J.;  McCullough  v.  The  Com.  of  Va.,  172  U.  S.  102  (1898), 
Brewer,  J. 

^  Supra. 


54  SOME  RKCKNT  CRITICISM   OF 

must  be  determined  before  any  question  will  arise  as  to  the 
validity  of  the  contract  which  it  authorizes."  Of  course  the 
question  as  to  the  validity  of  the  act  would  arise  before  either 
of  the^o. 

Lastly  we  wish  to  call  especial  attention  to  the  case  of  Pease 
V.  Peck}  This  case  came  up  by  a  writ  of  error  to  the  Circuit 
Court  of  Michigan.  The  question  here  was  not  as  to  the  con- 
struction of  a  statute,  but  as  to  what  the  statute  in  fact  was. 
The  statute  of  limitations,  as  passed,  did  not  contain  a  saving 
clause,  excepting  persons  "  beyond  seas."  Such  a  clause  was 
inserted  in  the  published  copy.  For  a  long  period  the  statute 
was  treated  by  the  courts  as  containing  this  provision.  A  copy 
of  the  original  act  having  subsequently  been  discovered,  and 
the  Supreme  Court  of  Michigan  having  determined  that  its 
former  treatment  of  the  statute  was  incorrect,  it  was  urged 
that  the  United  States  Court  should  apply  the  latter  construc- 
tion in  the  case  before  it.  This  the  court  refused  to  do.  The 
language  of  Mr.  Justice  Grier  is:  "The  territorial  law  in 
question  had  been  received  and  acted  upon  for  thirty  years,  in 
the  words  of  the  published  statute.  It  has  received  a  settled 
construction  by  the  courts  of  the  United  States,  as  well  as  of 
the  state.  It  had  entered  as  an  element  into  the  contracts 
and  business  of  men.  On  a  sudden,  a  manuscript  statute, 
differing  from  the  known  public  law,  is  disinterred  from  the 
lumber  room  of  obsolete  documents.  A  new  law  is  promul- 
gated by  judicial  construction  which,  by  retro-action,  destroys 
vested  rights  of  property  of  citizens  of  other  states,  while  it 
protects  the  citizens  of  Michigan  from  the  payment  of  admitted 
debts." 

This  statement,  it  will  be  perceived,  is  very  strong.  It 
assumes  that  a  meaning  is  engrafted  into  a  legislative  enact  ■ 
ment,  that  was  never  there.  This  is  done  by  means  of  judicial 
construction. 

Mr.  Justice  Campbell  and  Mr.  Justice  Daniel  dissented,  but 
solely  on  the  ground  that  they  did  not  think  it  appeared  that 
the    Supreme    Court    of   Michigan    had    ever    construed    the 

'  i8  How.  599  (1855),  Grier,  J. 


GELPCKE  VERSUS  DUBUQUE.  55 

Statute.  They  expressly  admitted  the  points  of  law  laid  down 
by  the  court. 

It  should  be  noted  that  Mr.  Justice  Grier  did  not  deny  the 
right  of  the  Supreme  Court  of  Michigan  "to  promulgate  a  new 
law,"  but  only  denied  the  right  of  any  state  court  to  apply  that 
law  to  existing  contracts.  It  is  submitted  that,  if  this  decision 
be  sound,  it  must  follow  as  a  matter  of  logic,  that  a  court,  by 
its  construction,  may  change  a  law  in  fact.  Here  the  law,  as 
passed,  did  not  contain  a  clause  which  the  courts  of  Michigan 
said  it  did.  The  Supreme  Court  of  the  United  States  say  that 
during  that  period,  the  law  was  what  the  Michigan  courts  said 
it  was.  This  can  mean  only  one  thing.  The  court's  declara- 
tion changed  the  law.  It  is  submitted,  after  this  examination 
of  the  cases,  that,  rightly  or  wrongly,  the  courts  have  actually 
decided, 

(i)  Judicial  interpretation  of  state  statutes  by  state  courts 
makes,    in  fact,  a  part  of  the  law  of  the  state. 

(2)  A  change  of  judicial  interpretation  is,  iti  fact,  an  amend- 
ment of  the  lazv. 

(3)  ^Vh^^i  state  courts  have  so  applied  such  an  amendment  as 
to  impair  the  obligation  of  a  contract,  the  federal  courts,  when 
they  have  acquired  jurisdiction  by  virtue  of  diverse  citizenship, 
will  refuse  to  follozv  the  decision,  because  to  do  so  zuoidd  be  to 
apply  a  ''law,''  {i.  e.,  the  altered  interpretation,  not  its  applica- 
tion to  the  contract)  tvJdch  impairs  the  obligation  of  contracts, 
and  which  is  forbidden  by  the  federal  constitution. 

Section  V.— DISCUSSION  OF  THE  CASE  ON  PRINCIPLE. 

It  is  neither  possible  nor  desirable  in  the  scope  of  this  paper 
to  go  deeply  into  the  subject  of  judicial  legislation,  nor  is  such 
its  purpose.  This  work  was  undertaken,  primarily,  to  show 
that  the  Supreme  Court  of  the  United  States  is  holding  two 
inconsistent  positions.  If  we  succeed  in  showing  that,  on  prin- 
ciple, one  of  the  two  must  be  abandoned  we  shall  feel  amply 
repaid.  This  inconsistency  will  be  dealt  with  in  the  section, 
on  Jurisdiction.  The  present  section  will  be  devoted  to  an 
endeavor  to  develop  a  little  more  clearly  than  the  cases  dis- 
close the  theory  upon  which  the  courts  have  been  working  to 


5^  SOMl".  UKCKNT  CKIPICISM  OF 

reach  tlic  conclusions  which  we  have  just  noted,  and  to  a 
discussion  of  the  soundness  or  unsoundness  of  that  theory. 

W'liat  the  courts  have  saiti,  whether  riijjhtly  or  wron^^ly,  is 
tliis  :  The  let;islature  passes  a  law,  w  hich  wc  will  call  //.  The 
State  Supreme  Court  intcrjircts  the  law  to  belvalid  ;  this  inter- 
pretation which  is  final  and  conclusive,  we  will  call  B.  The 
two  combine  and  the  law  becomes  AB,  and  is  now  complete. 
Subsequently,  the  court  declares  the  law  void.  This  last 
interpretation  we  will  call  V.  The  question  before  the  court 
was  this  :  Are  rights  acquired  under  AB  to  be  lost  by  con- 
struction  /'  and  the  court  said  No. 

The  reasoning  runs  about  as  follows  :  One  who  relies  upon 
the  faith  of  ^i  really  relies  upon  the  accuracy  of  an  interpreta- 
tion, which  he  has  himself,  put  upon  the  words  of  the  act. 
He  may  think  that  the  act  is  valid,  when  it  is  really  void,  but 
he  cannot  complain  for  a  loss  occurring  through  his  own 
error,  and  is  not,  therefore,  protected.  The  theory  is  that  A 
alone  is  incomplete,  because  the  legislative  body  in  this  country 
has  no  power,  as  in  Europe,  to  pass  upon  the  validity  of  its 
own  statutes,  and  thus  to  guarantee  rights  from  the  moment 
of  their  passage  ;  that  no  rights,  therefore,  can  be  acquired 
until  the  proper  court  has  declared  authoritatively  that  the 
law  is  valid.  But  as  soon  as  this  has  been  done,  then  the 
individual  is  fully  protected.  He  is  protected  as  to  y^,  because 
the  legislature  cannot  impair  his  contract  by  its  repeal ;  he  is 
protected  as  to  B,  because  the  court  cannot  impair  his  con- 
tract, by  varying  its  ruling  and  declaring  the  law  void.  This, 
in  brief,  is  without  question  what  the  courts  have  laid  down  as 
law,  in  those  cases  which  we  have  examined. 

To  reach  this  conclusion  it  is,  of  course,  necessary  to  hold 
that  rights  may  be  acquired  under  a  statute  afterwards  de- 
clared to  be  void.  This,  in  turn,  rests  upon  the  theory  that  a 
judicial  decision,  when  it  construes  a  state  statute,  does  not 
merely  interpret,  but  helps  to  make  the  law,  and  that  a  subse- 
quent judicial  decision  altering  that  construction  is  a  "  law," 
within  the  meaning  of  the  federal  clause  forbidding  the  state  to 
pass  "  laws"  impairing  the  obligation  of  contracts  ;  and  that  the 
federal  courts  may,  for  that  reason,  refuse  to  apply  it.     In  other 


GELPCKE  VERSUS  DUBUQUE.  5/ 

"words,  the  whole  principle  at  the  bottom  of  Gclpcke  v.  Dubuque, 
and  all  the  cases  following  it,  rests  upon  the  assumption,  not 
expressed,  it  is  true,  but  there,  nevertheless,  that  the  function 
of  the  Supreme  Court  of  a  state,  when  determining  the  validity 
or  invalidity  of  a  state  statute,  is,  in  its  nature,  a  legislative  and 
not  a  judicial  function. 

We  fully  realize  that  we  shall  be  treading  on  very  delicate 
ground  if  we  consider  a  tlieory  which  recognizes  that  a  court's 
decision  may  partake  of  a  legislative  character.  Most  of  those 
writers  who  have  supported  the  case,  have  carefully  avoided 
the  admission  that  the  decision  involves  this  theory,  or  else 
have  contented  themselves  with  the  simple  statement  that  the 
courts  have  decided  the  matter.  We  do  not  feel  satisfied  to 
stop  at  this  point.  We  believe,  in  the  first  place,  that  it  is 
a  more  honest  treatment  of  the  case  to  take  the  bull  by  the 
horns,  and  admit  the  principle  in  its  full  significance,  and,  in 
the  second  place,  we  are  desirous  to  see  if  the  rule  can  be  har- 
monized with  the  great  body  of  law,  of  which  it  forms  a  part. 

A.  The  rule  in  Gelpcke  v.  Dubuqjie  has  never  been  disputed 
by  authority. 

Under  this  phase  of  the  question  we  will  start  with  the 
statement,  upon  which  some  writers  have  been  content  to  rest 
their  support  of  this  case,  that  in  this  country  the  courts  have 
laid  it  down  as  a  rule  of  law  that  whenever  the  Supreme  Court 
of  a  state  determines  as  to  the  validity  of  a  statute  such  de- 
cision makes  a  part  of  the  law  of  the  state — /.  e.,  it  is  a  decision 
of  a  legislative  character.  In  opposition  to  this  it  is  said  that 
it  is  an  ancient  and  uncontradicted  principle,  that  the  courts 
do  not  make  or  change  the  law,  but  that  they  merely  expound 
and  apply  it;  therefore,  when  a  decision  is  reached,  the  true 
theory  is  that  the  law  always  was  as  last  expounded.  This 
was  Mr.  Justice  Miller's  great  argument  in  his  dissenting 
opinion  in  Gelpcke  v.  Dubuque.  He  says  if  the  courts  declare 
a  law  void,  then  it  is  void  absolutely  from  the  beginning,  and 
no  rights  can  be  acquired  under  it. 

As  we  have  shown,  the  courts  have  absolutely  repudiated 
this  view,  for  they  have  enforced  rights  thus  acquired  in  a 


5i^  SOME  RECENT  CRITICISM  OF 

loni:^  line  of  wcll-coiisidercd  opinions.  In  answer  to  the  ar£Tu- 
nicnt  ailwincei,!  In'  Mr.  Justice  Miller  and  others,  who  press 
the  i^cneral  rule  as  to  the  function  of  courts  and  judges,  it  is 
said  :  "To  this  general  doctrine  there  is  one  well-estabhshed 
exception,  as  follows:  'After  a  statute  has  been  settled  by 
judicial  construction,  the  construction  becomes,  so  far  as 
contract  rights  are  concerned,  as  much  a  part  of  the  statute 
a.<?  the  text  itself,  and  a  change  of  decision  is,  to  all  intents 
and  purposes,  the  same  in  its  effect  on  contracts  as  an  amend- 
ment of  the  law  by  means  of  a  legislative  enactment.'"' 

To  this  it  is  replied :  "  But  there  can  be  no  exception  to  a 
universal  and  positive  rule  of  law,  and  unless  you  can  show 
some  reason  for  your  exception  you  cannot  support  it  on  prin- 
ci[)le."  This,  then,  is  now  the  situation — one  side  pointing  ta 
a  long  line  of  Supreme  Court  decisions  to  justify  the  excep- 
tion, the  other  citing  a  positive  rule  of  law. 

We  wish,  at  this  point,  to  go  a  step  farther.  We  propose 
to  show  that  the  rule,  as  developed  in  these  cases,  is  not  really 
an  exception  at  all,  because  the  general  rule  adduced  by  Mr. 
Justice  Miller  et  al.  does  not  apply  to  it ;  but  that  it  is  a  rule, 
absolutely  unique,  concerning  which  there  is  no  authority  ex- 
cept in  this  country. 

The  rule  that  courts  never  make  or  change,  but  only  inter- 
pret, law,  was  imported  into  this  country  from  the  common 
law  of  England.  We  do  not  admit  nor  deny  the  principle  as 
applied  to  the  common  law,  though  we  confess  a  secret  feeling 
of  approval  with  which  we  read  the  language  of  an  old  Eng- 
lish judge  who  declared  that  he,  for  one,  could  not  under- 
stand the  theory  that  the  common  law  had  always  existed, 
unknown  to  man,  from  the  beginning  of  time,  and  that  the 
courts  were  still  striving  to  find  out  what  it  was  ;  and  who 
intimated  his  belief  that  he  himself,  together  with  his  com- 
panions, was  helping  to  make  that  same  common  law. 

But,  however  this  may  be,  we  confine  our  remarks  strictly 
to  cases  where  state  courts  arc  interpreting  the  validity  of 
state  statutes,  and  wc  say  that  the  rule,  as  existing  in  England, 

'  Ray  V.  Gas  Co.,  supra,  p.  27. 


GELPCKE  VERSUS  DUBUQUE.  59 

has  no  application  to  the  case  where  a  court  is  passing  upon 
the  vaHdity  of  a  state  statute,  because  in  England  the  courts 
have  not,  and  never  have  had,  the  power  to  pass  upon  the 
validity  of  an  act  of  Parliajuent. 

Not  only  is  this  true  of  England,  but  of  all  other  countries 
as  well.  Mr.  Hannis  Taylor,  in  his  work  "  The  Origin  and 
Growth  of  the  English  Constitution,"  speaks  of  this  peculiarity 
in  American  law ;  and  we  must  remember  that  the  same  re- 
marks will  apply  to  the  national  and  state  courts,  for  they 
both  have  the  same  constitutional  power  to  judge  of  the 
validity  of  legislation. 

He  says  ■}  "The  Supreme  Court  of  the  United  States  has 
no  prototype  in  history.  Judicial  tribunals  have  existed  as 
component  parts  of  other  federal  systems,  but  the  Supreme 
Court  of  the  United  States  is  the  only  court  in  history  that 
has  ever  possessed  the  power  to  finally  determine  the  validity 
of  a  national  law.  Such  a  jurisdiction  necessarily  arises  out 
of  the  American  system  of  constitutional  limitations  upon  the 
legislative  power — a  system  under  which  all  judges,  both 
state  and  federal,  possess  the  power,  in  their  respective  spheres,, 
to  pass  upon  the  validity  of  every  law  that  can  emanate  from 
a  state  or  federal  legislature.  In  the  English  system  such  a 
jurisdiction  could  not  exist,  for  the  reason  that  the  English 
Constitution  imposes  no  limitation  upon  its  legislative  assem- 
bly ;  there  is  no  '  higher  law '  by  which  the  English  courts 
can  test  the  validity  of  an  act  of  Parliament." 

Without,  at  this  point,  going  into  the  question  as  to  whether 
the  function  of  the  court  in  such  cases  is  actually  legislative  or 
judicial,  enough  has  been  said  to  show  that  the  rule  of  law 
adduced  to  overthrow  the  theory  of  these  cases  ought  not  to 
be  given  an  authoritative  position.  To  say  that  in  England 
courts  do  not  make,  but  only  interpret,  the  common  law,  does 
not  prove  that  courts  in  America  do  not  exercise  different 
functions  when  performing  a  different  service. 

Eliminating  that  precedent,  we  have  left  only  the  authority 
of  the  United  States  Supreme  Court.    The  principle  of  Gelpcke 

1  4  Ed.  Vol.  I,  p.  73. 


6o  SOMF  KF.CKNT  CRITICISM  OF 

v.  DitbiiijUt'  h.is  iio\cr  been  (jucstiniKHl  in  that  court.  The 
cases  have  refused  full  ieco(;nition  to  the  tloctiiue  by  disallow- 
infj  writs  of  error  to  state  courts,  as  wc  shall  show  in  the  last 
section,  but  they  have  not  attempted  to  overturn  the  founda- 
tion principle. 

That  principle  is  a  unique  rule,  developed  exclusively  in  this 
country,  and  is  an  outgrowth  of  our  peculiar  system  of  laws. 
Unless,  therefore,  the  principle  which  we  liave  shown  to  be  at 
the  bottom  of  Gclpckc  v.  Dubuque  is  intrinsically  wrong,  the 
case  must  be  considered  to  be  good  law. 

We  will  ask  a  further  indulgence  at  this  point,  that  we  may 
devote  a  portion  of  this  section  to  the  purpose  of  investigating 
whether  it  may  properly  be  said  that  the  power  to  pass  authori- 
tatively upon  the  validity  or  invalidity  of  an  act  of  legislature 
is  a  power  appertaining  to  the  legislative  department  of  gov- 
ernment, or  whether  it  is  more  correctly  called  a  strictly  judi- 
cial function. 

B.  Is  the  function  of  American  courts,  when  deciding  as  to 
ilie  validity  of  legislative  acts,  a  legislative  or  judicial  function? 

We  shall  discuss  this  question  under  three  topics  : 

(i)  The  status  of  the  power  to  negative  legislative  acts  in 
European  countries. 

(2)  An  examination  of  the  opinions  of  the  framers  of  the 

Constitution,  as  expressed  in  the  federal  convention. 

(3)  The  manner  in  which  the  exercise  of  the  power  was 

received  by  the  country. 

(i)  The  Status  of  the  Power  to  Negative  Legislative 
Acts  in  European  Countries. 

As  we  are  now  about  to  discuss  the  nature  of  a  power, 
granted  over  one  hundred  years  ago  to  one  department  of  our 
government,  it  is  of  the  highest  importance  to  see  where  that 
power  had  hitherto  rested  in  European  countries,  and  what 
was  the  prevailing  opinion  as  to  its  nature. 

There  are  two  distinct  methods  of  interpretation  of  laws, 
recognized  by  both  civil  and  common  law. 


GELPCKE  VERSUS  DUBUQUE. 


6i 


(a)  Authentic  interpretation,  which  determines  the  validity 

or  invalidity  of  the  law. 

(b)  Judicial  interpretation,  which,  according    to    certain 

rules,  interprets   the  meaning  of  the  law-making 
power. 

The  first  belongs  to  the  legislative  power;  the  second  to 
the  judicial.  We  find  this  rule  laid  down  in  "  Merlin's  Reper- 
toire : " 

''Cest  au  legislateur  quHl  appartient  naturellevient  d' inter- 
preter la  loi:  ejus  est  legem  inter pretari  cujus  est  legem  condere. 
C'est  line  maxime  tiree  du  droit  romain.  Quis  enim  {disait 
VEmpereur  Justinien  dans  la  loi  12  C.  de  legibus),  legum  enig- 
mata  solvere  et  apcrire  idoneus  esse  videbitur,  nisi  is  ctn  soli 
legislatorem  esse  concession  est.  En  France  nos  rois  se  sont 
toujours  reserve  V interpretation  de  leur  ordonances."^ 

Authentic  interpretation  has  always  been  considered,  in  the 
European  countries,  to  be  a  function  of  the  supreme  law-making 
power.  It  overrules  the  interpretation  of  judges,  if  the  two 
conflict.  It  is  said  that  this  must  be  true,  otherwise  the  legis- 
lative body  would  be  deprived  of  part  of  its  legitimate  power, 
which  would  thus  be  given  over  to  the  courts. 

The  German  view  is  well  expressed  in  the  case  of  K.  and 
others  v.  Th&  Dyke  Board  of  Niedervieland :'^  "The  constitu- 
tional provision  that  well-acquired  rights  must  not  be  injured, 
is  to  be  understood  only  as  a  rule  for  the  legislative  power 
itself  to  interpret,  and  does  not  signify  that  a  command  given 
by  the  legislative  power  should  be  left  disregarded  by  the 
judge  because  it  injures  well-acquired  rights."  This  power, 
declared  to  belong  to  the  legislative  body,  is,  it  will  be  noted, 
precisely  the  same  which  our  courts  possess  of  determining 
if  the  law  be  contrary  to  "well-acquired  rights,"  or,  in  other 
words,  if  it  be  in  contravention  of  the  will  of  the  people,  as 
expressed  in  their  constitution. 

In  Switzerland,  where  they  have  a  written  constitution  very 
similar  to  ours,  we  find  this  rule  even  more  plainly  laid  down. 

1  Cited  in  Brinton  Coxe's  "Judicial  Power  and  Unconstitutional  Legis- 
lation," p.  60. 

-  Decisions  of  the  Reichsgericht  in  Civil  Causes,  Vol.  IX,  p.  233. 


62  SOME  RECENT  CRITICISM  OF 

J.  M.  X'iiiccnt,  in  his  hook  entitled  "  State  and  l-'cdcral  Gov- 
ernment in  Switzerland,"  says:'  "Contrary  to  the  practice  of 
American  courts,  the  Swiss  cantonal  tribunal  does  not  try  acts 
of  the  legislature,  because  the  legislature  is  regarded  as  the 
final  authority  on  its  own  act."  Here  the  function  which  the 
Swiss  declare  to  be  a  Icgislativ^e  function  is  exactly  the  same 
which  we  have  delegated  to  our  judiciarj' — /.  e.,  the  right  to 
decide  between  the  authority  of  the  constitution  and  of  the 
law  enacted  by  the  legislature. 

Turning  now  to  the  country  from  which  we  derive  more 
directly  our  system  of  law,  we  find  the  same  idea  followed 
out.  Blackstone^  says :  "  But  if  Parliament  will  positively 
enact  a  thing  to  be  done  which  is  unreasonable,  I  know  of  no 
power  in  the  ordinary  forms  of  the  constitution  that  is  vested 
with  authority  to  control  it ;  and  the  examples  usually  alleged 
in  support  of  this  sense  of  the  rule  do  none  of  them  prove  that, 
where  the  main  object  of  a  statute  is  unreasonable,  the  judges 
are  at  liberty  to  reject  it,  for  that  were  to  set  the  judicial  power 
above  that  of  the  legislature,  which  would  be  subversive  of  all 
government."  At  the  same  time,  Blackstone  recognizes  the 
truth  of  the  observation  made  by  Locke,^  where  he  says : 
"  There  still  remains  inherent  in  the  people  a  supreme  power 
to  remove  or  alter  the  legislature,  when  they  find  the  legis- 
lative act  contrary  to  the  trust  reposed  in  them." 

Thus  we  have,  in  all  events,  the  same  situation  as  in  our 
country,  where  the  sovereignty  resides  in  the  people  ulti- 
mately, but  immediately  in  their  representatives.  And,  in 
this  same  situation,  Blackstone  declares  that  for  the  courts  to 
have  the  power  to  choose  between  the  will  of  the  people  and  the 
will  of  Parliament,would  be  to  usurp  the  power  of  the  legislature. 

In  Notley  v.  Buck,*  the  court  say  :  "  The  words  may  prob- 
ably go  beyond  the  intention,  but  if  they  do,  it  rests  with  the 
legislature  to  make  an  alteration  ;  the  duty  of  the  court  is  only 
to  construe  and  give  effect  to  the  provisions." 

'  P-  34. 

'  Vol.  I,  p.  91. 

*  Of  Parliament,  p.  49. 

*  8  Barn.  &  Cress.  160. 


GELPCKE  VERSUS  DUBUQUE.  63 

It  is,  of  course,  impossible  to  give  anything  approaching  a 
thorough  discussion  of  so  great  a  question  in  this  paper,  but 
enough  has,  perhaps,  been  said  to  illustrate  the  point.  We 
again  recall  the  fundamental  distinction  between  the  two  inter- 
pretations, the  authentic  or  the  authoritative,  and  the  purely 
judicial.  The  latter  does  not  enter  into  the  discussion,  for  no 
one  questions  the  principles  applied  to  it ;  but  we  have  now 
endeavored  to  show  that  the  leading  countries  of  the  old 
world  have  recognized  with  great  unanimity  that  the  former 
interpretation  belongs  to  the  power  which  makes  the  law, 
Hobbes  says  :  "  The  legislator  is  he  (not  by  whose  authority 
the  law  was  first  made,  but)  by  whose  authority  it  continues  to 
be  law." ^ 

This  power,  thus  recognized  to  be  legislative  in  its  charac- 
ter, is  in  America  delegated  to  the  Supreme  Courts  of  the 
United  States  and  of  the  several  states.  The  question  then 
arises  :  Is  there  any  ground  for  the  statement  that  this  power, 
when  in  this  country  it  is  given  to  the  courts,  loses  its  legis- 
lative character  and  becomes  purely  a  judicial  function?  We 
are  incUned  to  answer  that  question  in  the  negative.  We  are 
unable  to  conceive  how  a  change  of  the  body  which  executes 
the  power  can  change  the  inherent  nature  of  the  power  itself. 

Bowyer  in  his  "  Readings  Before  the  Middle  Temple," 
enunciates  the  theory,  in  pursuance  of  which  so  many  writers 
and  judges  have  said  the  power  of  the  courts  to  pass  upon  the 
validity  of  a  state  statute  is  a  purely  judicial  function.  He 
says:^  "  But  the  American  courts  are  invested  with  a  juris- 
diction unknown  to  the  constitution  of  this  country.  The 
Constitution  of  the  United  States  is  a  written  constitution, 
erected  by  delegation  of  powers  from  the  people  to  the  gov- 
ernment ;  and  the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  states,  are 
reserved  to  the  states  respectively,  or  to  the  people.  ...  It 
follows  from  these  fundamental  principles,  which,  indeed,  be- 
long to  every  federal  polity,  that  the  Constitution  is  the 
supreme   law  which   is  the   test  of  the  validity  of  all   other 

^  Cited  in  Austin's  Jurisprudence,  Vol.  I,  p.  201. 
»  P.  81  ^/f  seq. 


64  SOME  KKCKNT  CKlllCISM   OF 

laws.  Aiul  the  principle  so  well  l.iiil  chnvn  by  Montesquieu,, 
tliat  the  legislative  must  be  separateti  from  the  judicial  power, 
applies  to  the  instrument  of  the  Constitution.  It  follows  that 
the  power  of  inlerpreliiiij^  the  laws,  vested  in  the  national 
courts,  involves  necessarily  the  function  to  ascertain  whether 
tiie\'  are  conformable  to  the  Constitution  or  not ;  and  if  not  so 
conformable,  to  declare  them  void  and  inoperative.  As  the 
Constitution  is  the  supreme  law  of  the  land,  it  becomes  the 
duty  of  the  judiciary,  in  a  conflict  between  the  Constitution 
and  the  laws,  either  of  Congress  or  of  the  state,  to  follow  that 
only  which  is  of  paramount  obligation.  .  .  .  The  judicial 
power  is  thus  made  the  guardian  of  the  Constitution.  .  .  . 
This  does  not  imply  a  superiority  of  the  judicial  over  the 
legislative  power,  though  as  a  general  proposition  the  authority 
which  can  declare  the  acts  of  another  void  is  superior  to  the 
one  whose  authority  may  be  declared  void  by  the  former. 
The  theor}'  of  the  law  on  this  subject  deserves  some  examina- 
tion. The  act  of  a  delegated  authority,  contrary  to  the  com- 
mission or  beyond  the  commission  under  which  it  is  exercised, 
is  void.  Diligcnter  fines  inandati  custodicndi  sunt:  nam  qui 
excedit,  aliud  quid  facere  videtur.  He  who  acts  beyond  his 
commission,  acts  without  any  authority  from  it.  Now  the 
judicial  power  can  declare  void  the  acts  of  the  legislative 
power,  where  those  acts  are  beyond  the  delegated  power  of 
the  legislature,  and,  therefore,  not  legislative  acts  except  in 
form  only.  Thus  the  judicial  power  is  not  placed  above  the 
legislative  power,  because  the  former  must  obey  the  valid  acts 
of  the  latter." 

This  eminent  writer  first  admits  that  the  power  to  pass  upon 
the  validity  of  legislative  acts  is  in  all  other  countries  a  legis- 
lative function,  then  he  declares  in  America  it  naturally 
belongs  to  the  courts  because 

(a)  The  Constitution   is  the  supreme  law  of  the  land  and 

(b)  The  Federal  Government  is  one  of  delegated  powers. 
It  is  conceded  that  the  power  exercised  by  the  American 
courts,  if  exercised  by  English  or  Swiss  or  German  or  French 
courts,  would  be  legislation  ;  but,  it  is  said,  it  is  in  America  a 
judicial  function,  because  the  court  does  not  of  its  own  au- 


GELPCKE  VERSUS  DUBUQUE.  6$ 

thority  adjudge  the  law  void,  but  merely  chooses  between  two 
laws,  and  enforces  the  one  which  is  paramount. 

To  support  this  distinction  is  to  declare  that  in  all  countries, 
except  the  United  States,  the  legislative  power  is  absolutely 
independent  of  all  constitutional  restriction,  which  is  far  from 
true.  In  Switzerland  they  have  a  written  constitution  very 
similar  to  ours.  The  people  are  recognized  fully  as  the 
sovereign  power.  What  then  is  the  function  of  the  legislature 
of  Switzerland  ?  It  determines,  as  a  matter  of  interpretation, 
that  a  particular  law  is  consistent  with  the  written  Constitution, 
when  it  passes  that  law.  This  interpretation  is  authoritative 
and  final.  The  same  function  is  exercised  by  the  legislature 
of  Germany  as  we  have  seen.  The  legislature  first  decides 
that  a  law,  if  passed,  will  be  consistent  with  "  well-acquired 
rights,"  then  it  passes  the  law.  This  interpretation  is  nothing 
but  a  balancing  of  the  proposed  law  against  the  acknowledged 
limitations  imposed  by  the  German  Constitution.  In  England, 
as  we  have  pointed  out,  the  law  recognizes  the  ultimate 
sovereignty  to  be  in  the  people.  It  also  recognizes  Parlia- 
ment to  be  the  supreme  legislative  power ;  but  by  no  means 
does  this  mean  that  Parliament  is  actually  unlimited.  Its 
acts  must  conform  to  the  English  Constitution,  as  evidenced 
by  that  great  body  of  definite  and  clear,  though  unwritten, 
precedents.  It  is  said  that  Parliament  technically  has  the 
power  to  pass  any  law,  no  matter  how  unreasonable ;  but,  at 
the  same  time,  it  is  conceded  that  practically  Parliament 
cannot  do  that,  because,  as  Locke  says,  the  people  would 
deprive  them  of  the  power  of  which  they  had  proven  them- 
selves unworthy.  Because  the  English  people  do  not  possess 
the  machinery  which  we  do,  their  power  is  not  any  the  less  real, 
nor  any  the  less  potent.  Now  when  Parliament  goes  to  pass  a 
law,  what  does  it  do  ?  It  frames  the  bill,  and  then  in  the  exer- 
cise of  its  power  to  authoritatively  interpret,  decides  that  the 
law  will  be  consistent  with  the  rights  of  the  British  people. 

This  is  done  both  by  debate  in  the  House  of  Parliament, 
and  by  obtaining  the  opinions  of  judges,  who  not  only  sit  in 
Parliament  for  that  purpose,  but  are  expressly  called  in  to 
give  their  opinions  in  doubtful  cases. 


66  SOMK  RFXKNT  CRITICISM  OF 

The  con.stitiitii.Mialit\-  dt"  the  act  is  passotl  upon  just  as  much 
as  if  ParHaiiicnt  first  blimll\'  passeti  it,  and  then  delegated  the 
authoritative  power  to  interpret  to  a  court.  The  act  of  pass- 
ing the  law  decides  both  points  as  a  finality.  Is  this  any  less 
real  interpretation  of  a  statute  than  the  interpretation  which 
we  exercise  in  this  country? 

We  confess  our  inability  to  see  the  distinction  contended  for 
b>-  Mr.  Bow\cr.  The  constitution  is  recognized  to  be  the 
supreme  law  of  the  land  in  each  of  the  four  countries  which 
we  have  mentioned,  and  in  at  least  two  written  constitutions 
are  expressly  declared  to  be  the  supreme  authority.  As  we 
have  shown,  the  act  of  interpretation,  as  performed  by  the 
legislatures  of  those  countries,  is  in  its  nature  the  same  in  all 
respects  as  is  performed  in  America  by  the  courts.  In  both 
cases  the  interpretation  is  a  determination  between  two  laws : 
the  constitution  and  the  will  of  the  legislative  body,  expressed 
on  the  one  hand  by  a  bill  framed,  on  the  other,  by  a  law 
passed.  In  the  one  case  the  power  to  interpret  its  own  laws 
is  recognized  to  be  inherent  in  the  legislative  body.  In  the 
other,  that  power  is  taken  away  from  the  legislature  by  the 
people  and  given  to  the  judiciary.  Does  that  make  it  less  a 
legislative  power?  We  are  unable  to  see  how  the  instrument 
by  which  the  power  is  executed  can  change  its  inherent  nature. 

In  the  second  place,  Mr.  Bowyer  says  that  contrary  to  Euro- 
pean governments,  the  Federal  Government  of  the  United 
States  is  one  of  purely  delegated  powers.  We  beheve  this 
difference  to  be  mainly  one  of  degree,  in  that  the  limits  beyond 
which  our  governmental  acts  cannot  be  carried,  are  more 
sharply  defined,  but  we  will  avoid  the  whole  discussion  by 
again  calling  attention  to  the  fact  that  we  are  dealing  only 
with  the  power  of  a  state  court  to  declare  a  state  statute  void, 
and  that  the  state  governments  are  governments  not  of  dele- 
gated, but  of  inherent  powers.  Mr.  Bowyer's  remarks  upon 
this  point  have  no  application  to  our  discussion. 

We  respectfully  submit  at  this  point  the  following  con- 
clusions : 

(a)  Tlie  pmver  given  to  the  Supreme  Courts  of  the  United 
States  and  of  the  several  states,  to  authoritatively  interpret  laws 


GELPCKE  VERSUS  DUBUQUE.  6/ 

passed  by  their  respective  legislatures,  is  precisely  the  same  power 
as  that  exercised  by  the  legislative  bodies  of  Europe,  i.  e.,  the 
power  to  decide  between  the  expressed  will  of  the  legislature,  and 
the  constitution  of  the  state. 

(b)  This  power  is  recognized  in  all  nations,  except  the  United 
States,  to  belong,  as  of  inhereJtt  right,  to  the  legislative  depart- 
ment of  government. 

It  is  proper  to  remark  here  that  all  this  discussion  is  quite 
apart  from  the  right  of  any  court,  when  applying  a  statute,  to 
judicially  determine  the  meaning  of  its  words. 

(2)  An  Examination  of  the  Opinions  of  the  Framers 
OF  the  Constitution,  as  Expressed  in  the  Federal  Con- 
vention. 

After  this  rather  limited  discussion,  we  have  arrived  at  the 
conclusion  that  the  power  to  authoritatively  determine  be- 
tween the  fundamental  law  of  the  land,  and  a  law  passed  by 
the  legislative  body  of  that  land,  has  always  in  Europe  been 
deemed  to  be  a  power  appertaining  to  the  legislature.  Keep- 
ing that  thought  in  mind,  we  now  desire  to  devote  a  portion 
of  this  section  to  a  brief  investigation  of  the  manner  in  which 
our  courts  were  granted  these  extraordinary  powers.  In  con- 
ducting this  investigation,  three  things  will  be  considered  : 

(a)  The  end  which  the  framers  of  the  Constitution  had 

in  view. 

(b)  Methods    proposed,  by   which    it    was    intended    to 

accomplish  this  purpose. 

(c)  The  clause  or  clauses  in  the  Constitution,  by  virtue 

of  which,  the  courts  obtained  the   power  to  pass 
upon  the  validity  of  legislative  acts. 

(a)  The  End  which  the  Framers  of  the  Constitution  had  in 

View. 

There  is  no  difficulty  in  determining  the  purpose  of  the 
framers  of  the  Constitution  during  the  debates  and  proposals 
culminating  in  the  delegation  of  the  whole  question  to  the 
judicial  department.     This  intention  was,  to  use  the  expres- 


68  SOMK    KF.CKNT  CRITICISM   OF 

sion   most  often  lioartl,  "  to  put  a  clicck   upon  the  legislative 
department." 

The  statesmen  of  that  day  had  had  a  severe  object  lesson 
of  the  evils  that  could  be  inflicted  b)-  an  unlimited  legislative 
body,  and  they  determined  to  provide  against  a  repetition  of 
the  experience. 

It  had  already  been  provided  in  the  proposed  constitution, 
that  the  powers  of  the  legislature  should  be  exercised  only 
within  certain  limits,  but  it  was  recognized  that  this  was  not 
sufficient.  It  is  true  we  find  occasional  references  to  the 
power  of  the  courts  in  such  cases,  but  it  is  plain  that 
the  members  of  the  convention  fully  realized  that,  without 
more,  the  legislative  department  would  be  dangerously 
powerful,  because  they  still  retained  the  power  to  decide, 
whether  their  action  was,  in  fact,  contrary  to  the  Constitu- 
tion. As  will  be  shown  later,  various  plans  were  brought 
forward  to  accomplish  this  purpose,  i.  e.,  to  make  some 
power,  outside  of  the  legislature  itself,  the  judge  of  the 
validity  of  its  laws. 

Now,  if,  as  is  sometimes  contended,  the  decision  of  this 
question  is  purely  a  judicial  one,  why  was  any  further  guar- 
antee necessary?  The  same  constitutional  limitations,  which 
we  have  to-day,  had  already  been  drafted.  The  courts  were 
provided  for,  and  to  them  it  was  proposed,  of  course,  to  give 
full  Judicial  power.  It  seems  reasonable  to  suppose  that  the 
idea  that  the  legislature  was  the  natural  interpreter  was  present 
in  the  minds  of  the  men  who  were  engaged  in  framing  the 
Constitution. 

This  is  indicated  by  the  language  of  Mr.  Bedford,  when 
discussing  a  proposed  check  on  the  legislature.  The  report 
reads  :  "  Mr.  Bedford  was  opposed  to  every  check  on  the 
legislature,  even  the  council  of  revision  first  proposed.  He 
thought  it  would  be  sufficient  to  mark  out  in  the  Constitution  the 
boundaries  to  the  legislative  authority,  which  zvould  give  all  the 
requisite  security  to  the  rights  of  the  other  departments.  The 
representatives  of  the  people  were  the  best  judges  of  what  was 
for  their  interest,  and  ought  to  be  under  no  external  control 
whatever.      The  two  branches  would  produce  a  sufficient  control 


GELPCKE  VERSUS  DUBUQUE.  69 

luithin  the  legislature  itself}  Mr.  Bedford  said,  "  It  would  be 
sufficient  to  mark  out  the  boundaries  to  the  legislative  au- 
thority" in  the  Constitution,  and  gave  as  his  reasons,  that  in 
his  opinion  the  representatives  of  the  people  are  the  best 
interpreters  of  legislative  acts.  Clearly  Mr.  Bedford  thought 
that  in  the  absence  of  express  provisions  to  the  contrary,  the 
legislature  would  be  the  interpreter.  We  conclude  that  the 
convention  recognized  that  some  express  provision  must  be 
inserted,  in  order  to  take  away  from  the  legislature  its  inherent 
right  to  decide  as  to  the  validity  of  its  own  laws. 

(b)  Methods  Proposed  by  which  it  was  Intended  to  Accom- 
PWSH  THIS  Purpose. 

The  first  problem  that  seems  to  have  presented  itself  to 
their  minds,  was  how  to  force  the  states  to  observe  the  con- 
stitutional restraints  laid  upon  them.'  They  seemed  to  recog- 
nize that  the  extent  of  the  constitutional  restraints  was  to  be 
judged  by  the  legislative  department.  The  question  was,  by 
which  one,  the  national,  or  the  state.  Mr.  Langdon,  when  a 
proposition  to  give  this  power  to  the  federal  legislature  was 
before  the  convention,  said:  "He  was  in  favor  of  the  propo- 
sition. He  considered  it  as  resolvable  into  the  question, 
whether  the  extent  of  the  national  Constitution  was  to  be  judged 
of  by  the  general  or  state  governments  y"^  He  seemed  to  recog- 
nize but  the  two  alternatives. 

In  pursuance  of  this  purpose,  and  recognizing  this  principle, 
the  following  resolution,  embodied  in  the  Virginia  plan,  was 
proposed  to  the  convention  by  Mr.  Randolph : 

''Resolved  .  .  .  that  the  national  legislature  ought  to  be 
empowered  ...  to  negative  all  laws  passed  by  the  several 
states  contravening,  in  the  opinion  of  the  national  legislature, 
the  articles  of  the  Union,  or  any  treaty  subsisting  under  the 
authority  of  the  Union." ^ 

This  proposition,  to  vest  the  power  of  determining  the 
extent  of  the  federal  limitations  in  the  national  legislature, 

1  V.  Elliot's  Debates,  153. 

2  lb.  168. 
^  lb.  128. 


"O  SOME  RECENT  CRITICISM  OK 

was  upliclil  in  the  most  dctcrminctl  niaiincr  by  such  men  as 
Mailison.  Jefferson  (wlio  first  proposed  it),  Randolpli  and 
rinckne)'.  Their  support  of  this  proposition  shows  that  they 
considered  the  leyjishitive  power  to  be  the  natural  judge  of 
questions  of  this  character. 

This  proposal,  in  one  form  or  another,  was  brought  up 
again  and  again,  thoroughly  debated  and  finally  rejected,  not 
because  of  an\-  inherent,  wrong  principle  which  it  contained, 
but  because  it  was  deemed  inexpedient  to  adopt  it,  owing  to 
the  procedural  difficulty  of  applying  it.  Mr.  Lansing,  ob- 
jecting, said  :  "  It  is  proposed  that  the  general  legislature  shall 
have  a  negative  on  the  laws  of  the  states.  Is  it  conceivable 
that  there  will  be  leisure  for  such  a  task?  There  will,  on  the 
most  moderate  calculation,  be  as  many  acts  sent  up  from  the 
states  as  there  are  days  in  the  year."'  Mr.  Dickinson  favored 
an  absolute  negative  in  the  national  legislature.  He  said  : 
"  We  must  tj|k%  JLUjr  choice  of  two  things.  We  must  either 
subje^^TO-^ratis  to  the  danger  of  being  injured  by  that  of  the 
national  government,  or  the  latter  to  the  danger  of  being  in- 
jured by  that  of  the  states.  He  thought  the  danger  greater 
from  the  states.  To  leave  the  matter  doubtful  would  be 
opening  another  spring  of  discord,  and  he  was  for  shutting  as 
many  of  them  as  possible."^  He  did  not  seem  to  conceive 
that  the  judiciary  could  fill  this  need.  It  is  true  in  some 
places  we  find  references  to  the  power  of  the  judiciary  to 
judge  of  the  laws,  but  it  is  impossible  to  believe  that,  at  this 
time,  the  framers  of  the  Constitution  had  fully  conceived  of 
the  feasibility  of  vesting  such  powers  in  the  judiciary,  or 
they  would  not  have  considered  that  a  like  power  should  be 
given  to  the  national  legislature. 

The  observations  last  referred  to  were  made  on  June  8, 
1787,  before  the  convention  had  more  than  begun  its  labors. 
As  the  discussion  went  on,  the  convention  leaned  more  and 
more  toward  a  plan  to  give  over  the  whole  matter  to  the 
court.s.  They  were  inclined  to  this  course  for  two  reasons  : 
First,  because  of  procedural  difficulties  as  we  have  seen;  and,. 

'  V.  Elliot's  Debates,  215. 
'  lb.  173- 


GELPCKE  VERSUS  DUBUQUE.  /I 

secondly,  because  the  judiciary  was  recognized  to  be  more 
conservative  and,  therefore,  less  liable  to  radical  action.  On 
July  17th,  the  clause  granting  a  legislative  negative  was  lost 
by  a  vote  of  three  for  and  seven  against.  Mr.  Madison  fav- 
ored it  still  because  he  thought  nothing  less  would  control 
the  states.^  Mr.  Morris  and  Mr.  Sherman  favored  giving  the 
matter  over  to  the  courts.^ 

Immediately  after  the  motion  was  lost,  Mr.  Martin,  who  had 
been  one  of  its  active  opponents,  moved  a  resolution,^  which 
vested  in  the  judiciaries  of  the  several  states  the  authority  to 
decide  between  the  acts  of  the  national  and  of  the  state  gov- 
ernments. This  motion  was  agreed  to  without  dissent.  The 
convention  apparently  receiving  it  as  a  substitution  for  the 
motion  just  lost.  Mr.  Brinton  Coxe  observes,  "  In  finally  re- 
jecting the  legislative  negative,  and  overruling  its  previous 
action,  the  convention  took  a  step  backwards  only  to  make  a 
leap  forwards.  Luther  Martin's  motion  in  favor  of  the  plan 
of  what  is  now  paragraph  2,  Article  VI,  was,  as  before  stated, 
immediately  offered  and  adopted  without  opposition,  and 
apparently  without  debate.  Such  action  is  incomprehensible, 
if  the  framers  intended  to  abandon  what  had  been  their  avowed 
object,  as  well  as  to  abandon  the  measure  by  which  they  had 
intended  previously  to  secure  that  object.  In  first  adopting 
and  then  discarding  a  legislative  negative  to  be  applied  with 
legislative  discrimination,  and  substituting  therefor  a  judicial 
discrimination  applying  a  general  clause  of  derogation,  they 
intended  only  to  change  the  means  of  accomplishing  their 
object,  and  not  to  abandon  that  object  itself."  *  If  Mr.  Coxe's 
reasoning  be  sound,  we  must  conclude  that  the  framers 
of  the  Constitution,  having  first  recognized  as  a  legislative 
function  the  power  to  judge  as  to  the  constitutionality  of 
laws  passed  by  the  state  legislatures,  which  it  was  proposed 
to  vest  in  the  national  legislature,  then  concluded  to  accom- 
plish the  same   end   by   delegating  this  power  to  the  courts. 

1  V.  Elliot's  Debates,  321-2, 

■'  lb. 

^  lb. 

*  Judicial  Power  and  Unconstitutional  Legislation,  p.  333. 


7-  SOME  KECKNT  CRITICISM  OF 

This  tlclci^ation,    of  course,   could   not   chani:^c  the  nature  of 
tl)e  power. 

The  loi^isl.itive  nci^ative,  however,  was  not  yet  entirely 
killed.  It  came  up  twice  more  and  was  finally  disposed  of 
only  on  September  15th.  On  that  day  the  committee  laid 
before  the  convention  a  substitute  for  Article  I,  Section  10, 
which,  after  [>rovidins^  that  no  state  should  lay  any  imposts  or 
duties  ou  imports,  etc.,  etc.,  without  the  consent  of  Congress, 
concluded  :  "  and  all  such  laws  shall  be  subject  to  the  revi.sion 
and  control  of  Congress."  '  This  was  a  last  attempt  to  give 
to  Congress  precisely  the  power  which  the  courts  of  the  sev- 
eral states  and  of  the  United  States  now  exercise.  The  motion 
was  lost  by  a  vote  of  seven  to  three. 

This  discussion  of  the  legislative  negative  is  here  given  to 
show  that,  at  first,  the  men  who  composed  the  convention 
thought  only  of  giving  the  discriminating  power  to  a  legisla- 
tive body.  That  they  abandoned  the  means  on  account  of 
procedural  difficulties,  mainly,  and,  keeping  the  same  object 
before  them,  delegated  this  power  to  the  judiciary.  The 
avowed  purpose  of  thus  depriving  the  legislative  bodies  of  the 
interpretation  of  their  own  laws,  was  to  limit  their  power  still 
further  than  could  be  done  merely  by  constitutional  restric- 
tions, the  extent  of  which  they  had  the  power  to  judge.  As 
this  power  was  taken  from  a  legislative  body,  it  must  have 
been  a  legislative  power.  Giving  it  to  the  judiciary  did  not 
make  it  a  judicial  power. 

This  was,  perhaps,  the  critical  point  in  the  history  of  this 
important  question,  when  the  eminent  founders  of  our  Consti- 
tution, though  recognizing  the  character  of  the  power  with 
which  they  were  dealing,  by  a  wise  and  provident  policy, 
took  it  away  from  the  legislative  department  of  government 
and  gave  it  to  another  department  of  co-ordinate  authority, 
thus  permitting  the  one  to  be  a  check  upon  the  other,  consti- 
tuting the  judiciary  the  perpetual  safeguard  of  the  liberties  of 
the  people,  protecting  them  against  arbitrary  usurpation  of 
power  by  the  legislature. 

'  V.  Elliot's  Debates,  548. 


GELPCKE  VERSUS  DUBUQUE.  73 

There  is  little  reason  to  doubt  that,  had  the  legislative  nega- 
tive become  a  part  of  our  Constitution,  the  power  of  authori- 
tative interpretation  of  its  own  laws  would  have  been  given  to 
Congress,  as  a  necessary  adjunct  of  legislative  power;  and 
would  have  been  left  in  the  state  legislatures  where  it  already 
was,  by  virtue  of  the  inherent  sovereignty  of  the  state.  But, 
having  once  decided  that  the  judiciary  could  be  entrusted  with 
so  great  a  power  to  revise  and  check  the  acts  of  the  legislature, 
the  conclusion  was  natural  and  logical,  that  it  should  be  given 
that  power  in  all  cases. 

One  other  proposition  should  be  discussed  before  we  take 
up  the  question  of  the  actual  delegation  of  this  power,  and 
that  is  the  effort  to  establish  a  revisory  council,  composed  of 
executive  and  judges,  who  should  pass  upon  the  constitution- 
ality of  proposed  laws.  The  measure  was  moved  by  Mr. 
Madison.  It  provided  that  "  every  bill  which  shall  have 
passed  the  two  houses,  shall,  before  it  becomes  a  law,  be 
severally  presented  to  the  President  of  the  United  States,  and 
to  the  judges  of  the  Supreme  Court,  for  the  revision  of  each." 
It  also  made  provision  for  passage,  in  spite  of  disapproval,  by 
certain  specified  majorities. 

We  wish,  particularly,  to  call  attention  to  the  argument  of 
Mr.  Mercer,  who  "  heartily  approved  the  motion.  It  is  an 
axiom  that  the  judiciary  ought  to  be  separate  from  the  legis- 
lative ;  but  equally  so  that  it  ought  to  be  independent  of  that 
department.  The  true  policy  of  the  axiom  is,  that  legislative 
usurpation  and  oppression  may  be  obviated.  He  disapproved 
of  the  doctrine  that  the  judges ,  as  expositors  of  the  Constitution^ 
should  have  aiitJiority  to  declare  a  law  void.  He  thought  laws 
ought  to  be  well  and  cautiously  made,  and  then  to  be  uncon- 
trollable^  ^  Mr.  Morris  favored  the  motion.  "  Mr.  Dickinson 
was  strongly  impressed  with  the  remark  of  Mr.  Mercer,  as  to 
the  power  of  the  judges  to  set  aside  the  law.  He  thought  no 
such  power  ought  to  exist.  He  was  at  the  same  time,  at  a 
loss  what  expedient  to  substitute.  The  justiciar  of  Arragon, 
he  observed,  became  by  degree  the  law-giver."^ 

^  V.  Elliot's  Debates,  429. 
■"  lb. 


74  SOMK  KKCKNT  CRITICISM   OF 

Tlie  remarks  of  tlicsc  nicnibers  lead  us  irresistibly  to  the 
conclusion  that  they  both  considered  that  this  power,  about 
to  be  given  to  the  courts,  was  a  les,islative  power,  and  that 
the)-,  for  that  reason,  disapproved  of  it.  It  is  clear  that  the 
idea  was  one  conipai"ati\'el\'  new,  and  the  members  had  not 
yet  concluded  that  it  was  a  wise  step.  Mr.  Madison  favored 
g^ixin^j^  it  to  the  judiciar\',  but  put  his  opinion  on  the  ground 
of  utility,  without  replying  to  Mr.  Mercer's  suggestion  that 
they  ought  not  to  have  it  for  a  priori  reasons.  Indeed,  it 
must  be  conceded  that  Mr.  Mercer's  suggestion  that  laws 
should  "  be  well  and  cautiously  made,"  with  advice  by  judges, 
and  then  be  uncontrollable,  is  one  eminently  reasonable  and 
extremely  difficult  to  answer.  It  would,  at  least,  have  the 
merit  of  precluding  the  possibility  of  cases  similar  to  Gclpcke 
v.  Dubuque  ever  arising. 

However,  the  motion  to  provide  a  revisory  council  of  judges 
to  examine  proposed  laws  was  lost,^  and  thus  it  seemed,  at 
last,  to  be  definitely  settled  that  the  decision  as  to  the  validity 
of  the  laws  should  be  given  to  the  courts. 

(c)  The  Cl.^usr  or  Clauses  in  the  Constitution,  by  Virtue  of 
WHICH  THE  Courts  Obtained  the  Power  to  Pass  upon  the  Validity 
OF  Legislative  Acts. 

The  importance  of  this  question,  as  a  means  of  determining 
the  opinions  of  the  framers  of  the  Constitution,  cannot  be 
overestimated.  If  the  power  was  not  directly  conferred  by 
the  Constitution  upon  the  courts,  this  would  be  competent 
evidence  that  the  framers  were  of  the  opinion  that  no  such 
express  delegation  was  necessary;  but  that  the  courts  already 
possessed  it,  as  a  strictly  judicial  function.  We  do  not 
find  il  necessary  to  enter  into  the  discussion,  whether  this 
power  was  expressly  given  or  not,  in  view  of  the  very  able 
and  exhaustive  book  upon  the  subject  which  has  decided  the 
question  for  us.  Mr.  Brinton  Co.xe,  after  a  most  searching 
analysis  of  the  Constitution  and  the  opinions  of  its  founders,, 
has  come  to  the  conclusion  that  the  framers  did  intend,  and 

'  V.  Elliot's  Debates,  429. 


GELPCKE  VERSUS  DUBUQUE.  75 

did  actually  confer,  express  authority  upon  the  courts  to  de- 
clare laws  invalid.^ 

The  clauses  which  confer  this  power  are  two  in  number. 
Paragraph  2,  Article  VI,  which  lays  upon  the  state  courts  the 
duty  to  decide  between  national  and  state  laws,  and  Section 
2,  Article  III,  which  extends  the  judicial  power  to  all  cases 
arising  under  the  Constitution  of  the  United  States.  Mr. 
Coxe  observes  "  From  this  and  the  preceding  chapter,  it  ap- 
pears that  paragraph  2,  VI,  and  the  beginning  of  section  2, 
III,  have  a  common  origin.  This  fact  is  of  much  importance 
in  any  commentary  upon  the  Constitution.  It  is  especially 
important  in  this  essay,  which  makes  the  following  conten- 
tions concerning  those  constitutional  texts  : 

(i)  In  part  IV  of  the  Historical  Commentary,  it  is  con- 
tended that  the  evidence  makes  it  clear  that  the  two  texts 
were  closely  connected  in  the  framing  thereof,  and  that  the 
framers  intentionally  framed  them,  so  as  to  be  adapted  to  each 
other. 

(2)  In  the  Textual  Commentary,  it  is  contended  that,  inde- 
pendent of  the  extra-textual  evidence,  the  two  texts  can  be 
shown  to  be  so  intimately  related,  that  they  are  twin  texts." ^ 

As  we  have  seen,  paragraph  2  of  Article  VI  was  adopted 
without  dissent,  immediately  after  the  defeat  of  the  legislative 
negative,  and  as  Mr.  Coxe  declares,  as  a  substitute  therefor. 
The  clause  giving  to  the  judiciary  power  to  decide  all  cases 
arising  under  the  Constitution  of  the  Union,  was  not  adopted 
nor  even  proposed  tintil  August  2'/th,  after  it  had  become  evident 
to  the  members  of  the  convention  that  no  other  practicable  plan 
could  be  adopted  for  enforcing  obedience  to  the  ConstitutioTi. 

On  that  day  Dr.  Johnson  moved  to  insert  the  words  "this 
Constitution  and  the"  before  the  word  "laws,"  in  the  clause 
which  is  now  Article  III,  Section  2? 

That  this  vested  a  great  and  unusual  power  in  the  courts, 
was  realized.  "Mr.  Madison  doubted  whether  it  was  not 
going  too  far,  to  extend  the  jurisdiction  of  the  court  generally 

'  See  "Judicial  Power  and  Unconstitutional  L,egislation." 

^  P.  292. 

^  V.  Elliot's  Debates,  483. 


76  SOME  RECENT  CRITICISM  OV 

to  cases  arisinj;  uiulcr  the  Constitution,  and  whether  it  ought 
not  to  be  hniited  to  cases  of  a  judiciary  nature.  The  right 
of  expounding  the  Constitution,  in  cases  not  of  this  nature, 
ought  not  to  be  gi\-cn  to  that  department."  No  one  remark- 
ing upon  this  point,  the  motion  was  passed  without  dissent,  to 
make  the  alteration  proposed,  the  reporter  observing  that  it 
was  understood  by  the  members  that  the  jurisdiction  of  the 
courts  was  limited  to  cases  of  a  judiciary  nature. 

In  this  manner  was  granted  to  the  courts  a  power  never 
before,  in  the  history  of  the  world,  granted  to  a  judicial  body. 

Mr.  Pvladison  wsls  still  not  satisfied  as  to  his  point,  and 
moved  "to  strike  out  the  beginning  of  the  third  section,  'The 
jurisdiction  of  the  Supreme  Court,'  and  to  insert  the  words 
'the  judicial  power,""  which  was  agreed  to. 

The  convention  apparently  realized  that  they  had  given  to 
the  courts  a  power  which  might  be  exercised  in  cases  not  "  of 
a  judiciary  nature,"  and  Mr.  Madison  was  anxious  that  it 
should  be  limited  to  cases  of  that  nature.  This  was  the  pur- 
pose of  his  last  motion.  The  tables  were  now  turned.  The 
convention  had  been  considering  a  means  of  checking  the  legis- 
lature. They  decided  to  give  a  part  of  the  legislative  prerogative 
to  the  courts.  Fears  now  arose  whether  they  had  not  gone 
too  far  in  giving  to  the  courts  the  right  to  expound  the  Con- 
stitution* in  all  cases.  It  was  then  suggested  that  the  courts 
should  only  use  this  power  in  cases  "of  a  judiciary  nature." 
If  the  courts  had  no  powers  given  them  except  those  usually 
appertaining  to  courts,  it  would  of  course  be  an  absurdity  to 
speak  of  limiting  their  action  to  cases  of  a  "judiciary  nature." 
It  is  clear  from  Mr.  Madison's  remark  and  the  assent  of  the 
Assembly  to  it,  that  they  fully  realized  that  they  had  given 
to  the  judicial  department  a  power,  which  might  be  used  not 
only  outside  of  the  usual  field  of  judicial  action,  but  also 
outside  of  the  field  in  which  the  framers  intended  it  to  be 
exercised. 

For  this  reason,  they  took  additional  precautions  that  the 
courts   might  not   unduly  encroach    upon   the  legislature  by 

'  V.  Elliot's  Debates,  483. 


GELPCKE  VERSUS  DUBUQUE.  J  J 

refusing  to  sanction  laws  which  they  might  think  to  be  im- 
proper. That  their  fears  were  not  groundless,  is  seen  from 
an  examination  of  an  ever-increasing  multitude  of  cases  in 
the  state  courts,  where  these  "judicial  bodies"  have  even 
gone  so  far  as  to  declare  laws  void,  because  they  are  opposed 
to  the  "inalienable  rights"  which  belong  to  every  citizen/ 
The  evident  meaning  of  the  framers  was  that  this  quasi-legis- 
lative power  should  not  be  exercised,  except  where  there  was 
a  clear  conflict  between  the  Constitution  and  the  law. 

(3)  The  Manner  in  which  the  Exercise  of  the  Power 
WAS  Received  by  the  Country. 

Before  finally  leaving  this  branch  of  the  subject,  it  may  not 
be  out  of  place  to  see  how  the  exercise  of  this  power  was 
viewed  in  cases  in  which  it  was  first  actually  applied.  We 
cannot  better  summarize  the  matter  than  by  a  quotation  from 
the  address  of  Mr.  Battle,  delivered  before  the  Supreme  Court 
Bench  and  Bar  of  North  Carolina.  He  says,  "These,  our 
earHest  judges,  are  entitled  to  the  eminent  distinction  of  con- 
testing with  Rhode  Island,  the  claim  of  being  the  first  in  the 
United  States  to  decide  that  the  courts  have  the  power  and 
duty  to  declare  an  act  of  the  legislature,  which,  in  their 
opinion,  is  unconstitutional,  to  be  null  and  void.  The  ^[ioctrine 
is  so  familiar  to  us,  so  universally  acquiesced  in,  that  it  is 
difficult  for  us  to  realize  that  when  it  was  first  mooted,  the 
judges  who  had  the  courage  to  declare  it,  were  fiercely 
denounced  as  usurpers  of  power.  Speight,  afterwards  gov- 
ernor, voiced  a  common  notion,  when  he  declared  that  'the 
state  was  subject  to  three  individuals,  who  united  in  their  own 
persons  the  legislative  and  judicial  power,  which  no  monarch 
in  England  enjoys,  which  would  be  more  despotic  than  the 
Roman  Triumvirate,  and  equally  insufferable.'  In  Rhode 
Island  the  legislature  refused  to  re-elect  judges  who  decided 
an  act,  contrary  to  their  charter,  to  be  null  and  void.  In 
Ohio,  in  1807,  judges  who   had  made  a  similar  decision  were 

^  See  Godcharles  v.  Wigeman,  113  Pa.  431  ;  State  v.  Goodwill,  33  W. 
Va.  179  ;  y?^  Jacobs,  98  N.  Y.  98. 


yS  SOME  RECENT  CRITICISM  OF 

impeachccl,  ami  a  niajorit\'.  but  not  two-tliirds,  voted  to  con- 
vict thcni.  .  .  .  New  York  follows  with  a  similar  decision  in 
1 79 1.  South  Carolina  in  1792.  Maryland  in  1802.  The 
Supreme  Court  of  the  United  States  in  Marbury  v.  Madison 
in  1801."' 

Although  in  a  few  isolated  cases  these  powers  had  been 
exercised  by  state  courts  before  the  Revolution,  that  they 
could  not  legitimately  be  exercised  without  express  power 
given  by  the  Constitution,  seems  to  be  clear.  This  was  the 
cause  of  the  fierce  assault  which  was  made  upon  those  judges, 
who  dared  to  assume  this  function  prior  to,  or  immediately 
following,  the  adoption  of  the  Constitution.  The  objections 
were  put  upon  the  ground  that  the  function  was  a  legislative 
one.  The  power  was  defended,  not  on  the  theory  that  it  was 
one  naturally  belonging  to  the  judiciary,  so  much  as  that 
there  was  in  America  no  other  body  competent  or  appropriate 
to  discharge  this  duty. 

After  the  adoption  of  the  Constitution  this  power  was  recog- 
nized by  its  defenders  to  be  one,  not  inherently  belonging  to 
the  courts,  but  a  "  legislative  judicial  power"  granted  to  them 
by  the  Constitution.  Chief  Justice  Marshall,  whose  opinion 
in  Marbury  v.  Madison  is  most  often  quoted  to  show  that  he 
considered  this  to  be  a  judicial  function,  said,  while  arguing 
the  case  of  Ware  v.  Knowlton^  "  The  legislative  authority  of 
any  country  can  only  be  restrained  by  its  own  municipal  con- 
stitution. This  is  a  principle  that  springs  from  the  very 
nature  of  society  ;  and  the  jiidicial  authority  can  have  no  right 
to  question  the  validity  of  a  law,  unless  such  a  jurisdiction  is 
expressly  given  by  the  Constitution^ 

As  Mr.  Marshall  was  one  of  the  most  prominent  of  those 
men  who  conferred  this  power,  he  above  all  others  should 
have  known  its  nature.  His  decision  in  Marbury  v.  Madison 
does  not  contradict  this  view.  He  recognized  the  undoubted 
right  of  the  court  to  decide  between  the  law  and  the  Consti- 
tution, because  he  believed  that  power  to  have  been  conferred. 


'  103  N.  C,  472-3- 
'  3  Dall.  199-21 1. 


GELPCKE  VERSUS  DUBUQUE,  79 

He  says  "  The  judicial  power  of  the  United  States  is  extended 
to  all  cases  arising  under  the  Constitution. 

"  Could  it  be  the  intention  of  those  who  gave  this  power  to 
say  that,  in  using  it,  the  Constitution  should  not  be  looked 
into  ?  That  a  case  arising  under  the  Constitution  should  be 
decided  without  examining  the  instrument  under  which  it  arises? 

"  This  is  too  extravagant  to  be  maintained."  ^ 

Mr.  McMurtrie  held  the  same  view  as  Mr.  Marshall  as  to 
the  original  nature  of  the  power,  but  he  differed  with  him  as 
to  whether  it  had  been  properly  conferred.  He  says  in  his 
observations  :  "  Let  me  ask  whence  is  derived  this  power  that 
we  are  now  discussing,  that  of  declaring  void  a  legislative  act  ? 
Was  such  a  poHtical  power  ever  heard  of  before  ?  Did  any 
state  ever  grant  to  its  judicial  functionaries  the  power  of 
declaring  and  enforcing  the  hmits  of  its  own  sovereignty? 
What  state  before  conferred  on  a  court  of  justice,  in  deter- 
mining the  rights  of  two  suitors,  as  a  mere  incident,  and 
without  a  hearing  on  behalf  of  the  state,  the  power  to  deter- 
mine that  its  legislative  acts,  approved  and  sanctioned  by  all 
its  statesmen  for  thirty  years,  had  always  been  mere  nuUities 
— nullities  ab  initio  ?  "  ^  Mr.  McMurtrie,  however,  finally 
admits  that  such  a  power  was  granted,  though  he  thinks 
improperly. 

In  the  course  of  a  debate  in  the  Senate  on  the  Judiciary 
System,  in  the  year  1802,  Mr.  Breckenridge  gave  expression 
to  his  opinion  that  the  power  given  to  the  courts  was  a  legis- 
lative power,  and  disapproved  of  it  for  that  reason.  He  said  :  ^ 
*'  To  make  the  Constitution  a  practical  system,  the  power  of 
the  courts  to  annul  the  laws  of  Congress  cannot  possibly  exist. 
My  idea  of  the  subject,  in  a  few  words,  is  that  the  Constitution 
intended  a  separation  only  of  the  powers  vested  in  the  three  great 
departments,  giving  to  each  the  exclusive  authority  of  acting 
on  the  subjects  committed  to  each  :  That  each  are  intended  to 
revolve  within  the  sphere  of  their  own  orbits,  are  responsible 

1 1  Cr.  178-9. 

"  P.  13,  14,  15,  cited  in  Coxe  on  Judicial  Power  and  Unconstitutional 
l,egislation. 

3  IV.  Elliot's  Debates,  444. 


80  SOMK  Kl'CKNT  CKl  riClSM   rtK 

for  their  own  nioliiMi  onl\-  ;  aiul  arc  not  to  direct  or  control' 
the  course  of  others.  That  those,  for  example,  who  make  the 
laws,  are  presumed  to  have  an  equal  attachment  to,  and  interest 
in,  the  Constitution,  arc  equally  bound  by  oath  to  support  it, 
and  ha\  e  an  equal  right  to  give  a  construction  to  it.  That 
the  construction  of  one  department  of  the  powers  particularly 
vested  in  that  department,  is  of  as  high  authority,  at  least,  as 
the  construction  given  to  it  by  any  other  department;  that  is, 
it  is  in  fact  more  competent  to  that  department,  to  which 
powers  are  exclusively  confided,  to  decide  upon  the  proper 
exercise  of  those  powers,  than  any  other  department  to  which 
such  powers  are  not  entrusted,  and  who  are  not  consequently 
under  such  high  and  responsible  obligations  for  their  constitu- 
tional exercise  ;  and  that,  therefore,  the  legislature  would  have 
an  equal  right  to  annul  the  decisions  of  the  courts,  founded 
on  their  construction  of  the  Constitution,  as  the  courts  would 
have  to  annul  the  acts  of  the  legislature,  founded  on  their 
construction. 

"Although,  therefore,  the  courts  may  take  upon  them  to 
give  decisions  which  go  to  impeach  the  constitutionality  of  a 
law,  and  which  for  a  time  may  obstruct  its  operation,  yet 
I  contend  that  such  a  law  is  not  the  less  obligatory,  because 
the  organ  through  which  it  is  to  be  executed  has  refused  its 
aid." 

This  quotation  well  expresses  the  views  of  those  who  oppose 
this  system  of  interpreting  laws  proposed  by  the  Constitution. 
Mr.  Hamilton,  in  defence,  thus  replies  to  this  view  in  the 
Federalist: '  "  If  it  be  said  that  the  legislative  body  are  them- 
selves the  constitutional  judges  of  their  own  powers,  and  that 
the  construction  they  put  upon  them  is  conclusive  upon  the 
other  departments,  it  may  be  answered,  that  this  cannot  be  the 
natural  presumption,  where  it  is  not  to  be  recollected  from  any 
particular  provisions  in  the  Constitution.  It  is  not  otherwise 
to  be  supposed  that  the  Constitution  could  intend  to  enable 
the  representatives  of  the  people  to  substitute  their  will  to  that 
of  their  constituents." 

'  LXXVIII,  p.  426. 


GELPCKE  VERSUS  DUBUQUE.  bl 

In  other  words,  Mr.  Hamilton  does  not  deny  the  nature  of 
the  power,  but  declares  that  in  a  government  where  the  legis- 
lative power  is  limited,  it  must  be  that  the  power  to  judge  of 
their  own  laws  shall  be  taken  away  from  them,  otherwise  they 
would  not  be  limited.  While  this  is  not  strictly  true  (a  con- 
stitution operating  only  on  the  conscience  of  the  legislature, 
being  a  very  powerful  check),  yet  the  founders  of  the  Consti- 
tution deemed  it  necessary  for  their  security,  that  this  should 
be  done.  With  this  thought  in  mind  they  cast  about  for  a 
co-ordinate  department  in  which  to  deposit  the  legislative 
power  which  they  were  withholding  from  the  legislative 
department,  and  naturally  decided  upon  the  judiciary,  which, 
as  is  easily  seen,  is  peculiarly  well  fitted  for  such  a  task.  This 
is  the  thought  expressed  by  Hamilton  when  he  says,  "The 
interpretation  of  the  laws  is  the  proper  and  peculiar  province 
of  the  courts." 

We  conclude,  after  this  cursory  examination  of  the  debates 
and  writings  of  the  men  who  are  responsible  for  our  Con- 
stitution. 

( 1 )  They  recognized  that  the  power  to  interpret  authoritatively 
the  laws  passed  by  the  legislature  was  a  power  naturally  belong- 
iyig  to  that  body. 

(2)  They  desired  to  witlihold  that  poiver  from  the  legislature 
in  order  to  further  limit  that  department. 

(3)  They  finally  made  provisioji  for  this  power  to  be  vested 
in  the  judiciary ,  becatise  that  departme?tt  zuas  deemed  best  fitted 
to  carry  out  this  p^irpose. 

We   close   the  discussion   by   remarking,  once   more,  that 

as   the   power   is  in  its  nature  a  legislative  power,  it  is  not 

changed  because  it  is  exercised  through  the  medium  of  the 
judiciary. 

C.   Concluding  observations . 

We  now  approach  the  end  of  the  discussion  of  the  prin- 
ciple involved  in  Gelpcke  v.  Dubuque.  As  we  have  previously 
pointed  out,  the  case  rests  upon  the  theory  that  the  function 
of  state  courts  when  declaring  legislative  acts  void,  is  of  a 


82  SOMF.  KIXKNT  CRITICISM   OF 

ley;islativo  characlcr.     This   sectinii    has   been  devoted   U)  an 
investigation  of  the  soundness  of  tliat  theory.    We  have  shown 

( 1 )  That  in  all  nations  except  the  United  States  the  poiver  to 
interpret  their  iKvn  laws  actually  belongs  to  the  legislative 
department. 

(2)  That  the  poioer  granted  to  the  courts  by  the  federal  Con- 
stitution zcas  recognized,  by  its  frainers,  to  be  a  legislative- 
Judicial  pozver. 

In  considering  the  second  point,  we  have  discussed  more 
particularly  the  federal  courts.  The  same  reasoning,  however, 
\\'\\\  apply  to  the  state  courts,  even  more  forcibly.  First, 
because  state  constitutions  are  modelled  after  the  federal  Con- 
stitution, and,  secondly,  because  the  state  governments  are 
inherent  sovereignties. 

When  we  conclude  that  the  function  of  declaring  acts 
invalid  is  a  legislative  function,  we  do  not  mean  to  say  that 
it  is  not  performed  in  a  judicial  manner.  From  its  very 
nature,  it  must  be.  In  countries  where  the  legislature  pos- 
.sesses  the  power  to  interpret  its  own  laws,  it  always  calls  in 
the  aid  of  judges  to  assist  it  in  determining  between  the  law 
and  the  constitution.  Nor  would  we  wish  to  have  it  supposed 
that  we  are  not  in  favor  of  that  wise  and  far-seeing  policy, 
which  gave  this  important  power  to  a  functionary  so  able  to 
exercise  it. 

But,  at  the  same  time,  we  insist  that  this  power  should  be 
recognized  in  its  true  character.  The  fundamental  difference 
between  our  government  and  the  governments  of  all  other 
•countries,  is  that  their  constitutions  are  binding  only  on  the 
•  consciences  of  their  legislative  bodies.  The  framers  of  our 
•Constitution  had  learned  by  experience  to  fear  a  legislature 
limited  only  by  its  own  judgment  as  to  its  powers.  This  was 
the  moving  cause  of  the  constitutional  provision. 

Recognizing,  therefore,  the  power  to  be  legislative,  on  prin- 
ciple, its  exercise  should  be  given  the  effect  of  a  legislative 
enactment.  And  this  is  precisely  what  the  courts  have  done 
ever  since  the  first  case  arose,  where  rights  depended  upon 
the  view  taken  of  the  nature  of  this  power.  All  through  the 
cases  we  find  the  expression  continually  repeated,  "a  change 


GELPCKE  VERSUS  DUBUQUE.  83 

of  judicial  interpretation  should  be  given  the  same  effect  as  a 
legislative  amendment."  It  has  been  consistently  asserted 
that  a  "  state  can  impair  the  obligation  of  contracts,  no  more 
by  decisions  of  its  courts,  than  by  legislative  acts."  Thus 
continually  recognizing,  without  actually  saying  it,  that  the 
two  stand,  in  this  regard,  upon  an  equal  footing.  The  courts 
have  reached  this  conclusion  because  they  realize  that  any 
other  course  would  be  most  unjust  to  the  individual,  and  most 
dangerous  in  its  influence  upon  the  state.  But  that  they  have 
not  fully  accepted  the  court's  action  to  be  legislative  in  its 
intrinsic  character,  is  inferrible  from  their  action  in  refusing 
writs  of  error  to  state  courts. 

The  application  to  Gelpcke  v.  Dubiiqiie  is  plain.  The  later 
decision  of  the  Iowa  court  declaring  the  act  invalid,  was  of 
course  an  exercise  of  the  legislative  prerogative  of  the 
Supreme  Court  of  a  state.  It  was,  therefore,  exactly  in  the 
position  of  a  repealing  act,  and  if  given  retroactive  effect,  it 
would  impair  the  obligation  of  contracts  entered  into  before 
its  enactment. 

The  Circuit  Court  did  so  apply  it.  The  Circuit  Court,  there- 
fore, gave  it  such  an  effect  that  it  did  impair  the  obligation  of 
contracts.  Therefore  the  Supreme  Court  very  properly  said, 
"  This  amendment  to  the  law,  promulgated  by  the  State  of 
Iowa,  you  have  so  applied  to  a  contract,  as  to  impair  its  obli- 
gation. Therefore  we  will  reverse  you.  This  amendment  is 
valid  as  to  the  future,  but  cannot  affect  vested  rights  which 
are  protected  by  the  federal  Constitution." 

Our  final  conclusion  is  that  Gelpcke  v.  Dubuque  is  sound, 
not  only  because  the  pecuHar  rule  as  there  laid  down  has 
never  been  contradicted  by  any  court  or  by  any  principle  of 
law  applicable  to  it,  but  because,  starting  from  a  priori 
grounds,  we  arrive  on  principle  at  the  same  conclusion. 

We  cannot  close  the  subject,  however,  without  devoting  a 
closing  section  to  a  discussion  of  the  anomalous  position  of 
the  Supreme  Court,  in  refusing  to  allow  writs  of  error  to 
state  courts  in  cases  similar  to  Gelpcke  v.  Dubuque. 


$4  SOMK  KIXKM"  CRITICISM   OF 

Seo-ion  VI.— STUnn.D  Till':  SUPREME  COURT  ALT>OW 
WRITS  OF  ERROR  1(  >  STATE  COURTS  IN  CASES 
Sl.NHl.AK    TO  Clll.rCkl':  V.    DUBUQUE? 

W'c  ha\c  elsewhere  iiuiileiit.illy  refeiTed  to  the  aiioiiialous 
position  assumetl  by  the  Su[-)ienic  Court  on  tliis  t[iicstion.  In 
cases  of  this  nature,  where  they  acquire  jurisdiction  by  reason 
of  the  citizenship  of  tlie  p.uties,  the}'  disrcL^ard  the  decisions 
of  state  courts.  They  do  this  because  the  state  court  has 
upheld  an  altered  interpretation  of  a  .state  statute,  which 
impairs  the  obligation  of  a  contract.  In  this  class  of  cases 
they  hold  such  an  interpretation  to  be  a  "law"  within  the 
meaning  of  the  federal  clause.  But  if  the  case  is  brought  up 
by  writ  of  error  to  a  state  court,  the  Supreme  Court  will 
refuse  to  take  jurisdiction,  beause,  they  say,  for  purposes  of 
jurisdiction  a  state  decision  construing  a  statute  is  not  a  "  law." 

Thus,  one  who  is  so  fortunate  as  to  be  a  citizen  of  a  state 
other  than  the  one  where  the  cause  of  action  arises  may  obtain 
relief;  while  an  in(,li\idual  who  is  so  unfortunate  as  to  be  a 
citizen  of  the  same  .state  has  no  remedy.  This  condition  of 
affairs  is  little  less  than  monstrous.  The  two  positions  are 
absolutely  irreconcilable.  We  shall  discuss  this  subject  under 
three  heads : 

A.  An  examination  of  the  cases  similar  to  Gelpcke  v. 
Dubuque  which  have  come  up  by  writ  of  error  to  state  courts 
and  have  been  refused  consideration. 

B.  An  examination  of  cases  coming  up  by  writ  of  error  to 
state  courts  where  the  act  involves  a  contract. 

C.  The  question  o  jurisdiction  examined  on  principle. 

A.  An  examination  of  the  cases  similar  to  Gelpcke  v.  Dubuque 
which  have  come  tip  by  writ  of  error  to  state  courts  and  have 
been  refused  consider atio7i. 

Ever  since  the  date  of  the  decision  in  Gelpcke  v.  Dtibuque 
cases  from  state  courts  involving  similar  facts  have  been  con- 
sistently applying  to  the  Supreme  Court  for  their  consideration 
and  have  been  consistently  refused.  The  two  lines  of  cases 
have  grown  up  side  by  side.  The  only  explanation  which 
can   be  offered   for  this  strange  spectacle  is  that  the  court 


GELPCKE  VERSUS  DUBUQUE.  8$ 

recognized  the  justice  of  refusing  to  give  a  state  court's 
re-interpretation  of  a  statute  a  retroactive  effect,  and  at  the 
same  time  shrank  from  calHng  it  a  "  law  "  in  the  technical 
language  of  the  judiciary  acts.  That  this  would  have  been 
not  only  the  more  honest  but  also  the  more  correct  course, 
would  follow  from  the  conclusions  worked  out  in  this  paper. 

The  first  case  where  the  question  was  before  the  court  was 
Railroad  v.  Rock)  In  that  case  the  facts  were  identical  with 
Gelpcke  V.  Dubuque,  except  for  the  circumstance  that  here  the 
parties  were  citizens  of  the  same  state.  The  court  dismissed 
the  writ  because  they  declared  that  the  case  might  have  been 
decided  on  the  ground  of  fraud,  and  that  not  only  must  it  be 
shown  that  a  federal  qiLestion  might  have  been  involved,  but  it 
must  be  shozvn  that  it  necessarily  was  involved.  This  ground 
was  ample,  and  the  court  so  considered  it,  for  the  dismissal  of 
the  writ.  What  follows  cannot  have  the  full  force  of  a  de- 
cision, but  must  partake  of  the  nature  of  a  dictum. 

The  court,  however,  then  went  on  to  say :  "  That  counsel 
had  based  their  whole  claim  on  the  ground  that  '  the  Supreme 
Court  of  Iowa  had  made  a  decision  impairing  the  obligation 
of  a  contract,'  and  had  based  their  entire  argument  on  the 
fundamental  error  that  this  court  can  as  an  appellate  tribunal 
reverse  the  decision  of  a  state  court,  because  that  court  may 
hold  a  contract  to  be  void  which  this  court  might  hold  to  be 
valid."  It  is  submitted  that  if  counsel  did  base  their  whole 
claim  on  that  broad  assumption,  they  deservedly  and  unques- 
tionably failed  to  make  out  a  case  for  the  consideration  of  the 
Supreme  Court  of  the  United  States. 

The  argument  of  counsel  is  very  briefly  reported,  so  we  can 
hardly  tell  whether  or  not  they  distinguished  between  state 
decisions  which  interpret  state  statutes,  and  state  decisions 
which  merely  interpret  contracts.  Mr.  Justice  Miller,  who 
delivered  the  opinion,  made  no  distinction,  and  evidently  con- 
sidered only  state  decisions  in  their  broad  sense.  Viewed  in 
this  light,  the  statement  of  Mr.  Justice  Miller  is  unquestionable. 
He  says  that  the  court  would  refuse  to  assume  jurisdiction, 

1  4  Wall.  177  (i866),  Miller,  J. 


S6  SOME  KKCENT  CRITICISM  OF 

because  "  If  ihi^  uxtc  the  law,  cxciy  case  of  a  contract  held 
by  the  state  court  not  to  be  I)inclini^,  for  an>'  cause  whatever, 
would  be  brout:;ht  to  this  court  for  review,  and  we  should  thus 
become  the  court  of  final  resort  in  all  cases  of  contract  where 
the  decisions  of  the  state  courts  were  against  the  validity  of 
the  contracts  set  up  in  those  courts." 

No  one  would  question  Mr.  Justice  Miller's  argument  if  his 
premises  were  sound.  He  assumes  that  the  Supreme  Court 
were  asked  to  review  the  state  court's  construction  of  a  con- 
tract. It  is  submitted  that  this  is  incorrect.  It  was  not  the 
construction  of  the  contract,  /w/  t/ic  interpretation  of  the  statute, 
that  impaired  its  obligation.  The  Supreme  Court  were  asked 
to  review  the  decision  which  upheld  and  applied  that  altered 
interpretation. 

Railroad  v.  Rock  first  laid  down  the  rule  that  the  Supreme 
Court  would  not  in  such  cases  assume  jurisdiction.  The  part 
of  the  opinion  devoted  to  the  question  we  are  discussing,  which 
was  only  a  few  lines  in  extent,  was  not  necessary  for  the  de- 
cision, and  yet  this  case  undoubtedly  is  the  foundation  of  all 
the  other  decisions  which  follow  it  in  adopting  the  same 
course. 

As  these  cases  are  all  very  similar  in  their  facts,  an  extended 
investigation  would  be  of  no  service.  We  shall  quote,  how- 
ever, from  one  of  the  later  cases  to  show  the  development  of 
the  doctrine,  and  cite  some  of  the  intervening  cases  in  the 
note.^  In  Bacon  v.  Texas,  Mr.  Justice  Peckham  for  the  court 
says:  "The  argument  involves  the  claim  that  jurisdiction 
exists  in  this  court  to  review  the  judgment  of  a  state  court  on 
writ  of  error  when  such  jurisdiction  is  based  upon  an  alleged 
impairment  of  a  contract,  by  reason  of  the  alteration  by  a 
state  court  of  a  construction  heretofore  given  by  it  to  such 
contract,    or  to   a  particular  statute,  or  series  of  statutes,  in 

'  R.  R.  V.  McClure,  lo  Wall.  511  (1870),  Swayne,  J.  ;  Bank  v.  Bank,  14 
Wall.  9  (1871),  Swayne,  J.  ;  Palmer  v.  Marston,  14  Wall.  10  (1871), 
Swayne,  J.  ;  Kennebec  River  v.  R.  R.,  14  Wall.  23  (1871),  Miller,  J.  ; 
Duggcr  V.  Bocock.  104  U.  S.  596  (i88r),  Waite,  C.J.  ;  Lehigh  Water  Co. 
V.  Easton,  121  U.  S.  388  (1886).  Harlan,  J.  ;  N.  O.  Waterworks  v.  La. 
Sugar  Ref.  Works,  125  U.  S.  19  (1887)  ;  Central  Laud  Co.  v.  Laidley,  159. 
U.  S.  102  (1895),  Gray,  J. 


GELPCKE  VERSUS  DUBUQUE.  8/ 

existence  when  the  contract  was  entered  into.     Such  a  foun- 
dation for  our  jurisdiction  does  not  exist.     It  has  been  held 
that  where  a  state  court  has  decided,  in  a  series 'of  decisions, 
that  its  legislature  had  the  power  to  permit  municipalities  to 
issue  bonds  to  pay  their  subscriptions  to  railroad  companies, 
and  such  had  been  issued  accordingly,  if  in  such  event  suit 
were  brought  on  the  bonds  in  a  United  States  court,  that  court 
would  not  follow  the  decision  of  the  state  court  rendered  after 
the  issue  of  the  bonds,  and  holding  that  the  legislature  has  no 
power  to  permit  the  municipality  to  issue  them,  and  that  they 
were  therefore  void.     Such  are  the  cases  of  Gelpcke  v.  Dubuque 
and  Douglas  v.  Co.  of  Pike.     In  cases  of  that'  nature  there  is 
room  for  the  principle  laid  down  that  the  construction  of  a 
statute  and  admission  as  to  its  validity,  made  by  the  highest 
court  of  a  state,  prior  to  the  issuing  of  any  obhgations  based 
upon  the  statute,  enters  into  and  forms  a  part  of  the  contract, 
and  will  be  given  effect  to  by  this  court,  as  against  a  subse- 
quent changing  of  decision  by  the  state  court,  by  which  such 
legislation  might  be  held  to  be  invalid.     But  effect  is  given  to- 
it  by  this  court,  only  on  appeal  from  a  judgment  of  a  United 
States  court  and  not  from  that  of  a  state  court.     This  court 
has  no  jurisdiction  to  review  a  judgment  of  a  state  court  made 
under  precisely  the  same  circumstances,  although  such  state 
court  thereby  decided  that  the  state  legislation  was  void,  which 
it  had  prior  thereto  held  to  be  valid.      It  has  no  jurisdiction,, 
because  of  the  absence  of  any  legislation  subsequent  to  the 
issuance  of  the  bonds,  which  had  been  given  effect  to  by  the 
state  court.      In  other  words,  we  have  no  jurisdiction  because 
a  -state  court  changes  its  views  in  regard  to  the  proper  con- 
struction  of  its   state  statutes,    although    the  effect  of  such 
judgment  may  be  to  impair  the  value  of  what  the  state  court 
had  before  that  held  to  be  a  valid  contract."  ^ 

This  opinion  is  quoted  somewhat  at  length  that  we  may 
have  before  us  the  reason  why  a  writ  of  error  is  not  allowed, 
and  that  we  may,  if  possible,  perceive  the  di.stinction  between 
this  case  and  the  line  to  which  Mr.  Justice  Peckham  referred  as 

'  163  U.  S.  207  (1895),  Peckham,  J. 


88  SOME  RF.CF.NT  CU ITICTf^M  OF 

represented  by  Gclpcke  v.  Dubuque  and  Douglas  v.  Co.  of  Pike. 
We  do  not  derive  much  satisfaction  from  a  perusal  of  his 
lauijjuage,  and  yet  this  is  the  h\test  exposition  of  the  subject. 

The  reason  L;i\-cii  wh)-  llio  ccnirt  cKk-s  not  take  jurisdiction 
is  because  tliere  lias  been  no  subsequent  statute  passed  im- 
pairing the  obligation  of  contracts,  and  which  the  state  court 
has  upheld,  which  is  declared  to  be  a  condition  precedent  to 
bringing  up  a  case  under  the  25th  section  of  the  Judiciary  Act. 
The  court  does  not  attempt  to  distinguish  the  cases  coming  up 
from  Circuit  Courts.  Mr.  Justice  Peckham  evidently  realized 
that  they  cannot  be  distinguished.  He  contents  himself  by 
stating  that  in  the  one  case  the  court  will  overthrow  the 
authority  of  the  state  court,  and  in  the  other  case  they  will 
not  assume  jurisdiction. 

After  this  glance  at  the  cases  we  come  back  again  to  our 
starting  point.  As  late  as  January  9th,  in  the  current  year, 
the  federal  court  reasserted  the  doctrine  that  a  state  court's 
interpretation  of  a  statute  is  a  "law  "  within  the  meaning  of 
the  federal  clause  forbidding  states  to  pass  laws  impairing  the 
obligation  of  contracts  ;  and  that  they  refuse  to  apply  it  for 
that  reason.^  But  in  the  latest  case  which  we  have  examined 
on  the  other  side,  we  find  it  just  as  positively  stated  that  such 
interpretation  is  not  a  "  law  "  within  the  meaning  of  the  25th 
section  of  the  Judiciary  Act.  This  is  the  situation,  not  entirely 
satisfying,  which  wc  find  in  that  field. 

B.  An  examination  of  cases  coming  up  by  zvrit  of  error  to 
state  courts  zvhere  the  act  involves  a  contract. 

As  this  class  of  cases  has  already  been  discussed  in  a  former 
section,  wc  shall  not  re-examine  the  early  cases  at  this  point. 
We  wish,  however,  to  ask  careful  attention  to  the  very  recent 
case  of  McCullough  v.  Cojnmonivealth  of  Va?  The  famous 
coupon  cases  of  Virginia  are  well  known,  and  also  the  frequent 
attempts  of  Virginia  to  limit  her  liability  by  legislative  enact- 
ments. The  original  coupon  act  was  pa.ssed  on  March  30, 
1 87 1,  and  provided  for  the  issuance  of  coupon  bonds,  which 

•  Loeb  V.  Trustees  of  Ham.  Co.,  supra,  p.  27. 

*  172  U.  S.  102  (1898),  Brewer,  J. 


GELPCKE  VERSUS  DUBUQUE.  89 

were  declared  to  be  receivable  in  payment  of  taxes  due  the 
state.  This  act  was  uniformly  held  by  the  Supreme  Court  of 
Virginia  to  be  a  constitutional  and  valid  act  during  a  period  of 
twenty-seven  years.  Finally,  the  Supreme  Court  of  Virginia 
adjudged  the  act  to  be  null  and  void,  and  the  case,  in  which 
this  action  was  taken,  was  then  brought  into  the  Supreme 
Court  by  writ  of  error. 

The  judgment  of  the  lower  court  was  entirely  directed  to  an 
investigation  of  the  original  act.  Nothing  else  was  even  men- 
tioned. Mr.  Justice  Pcckham,  in  his  dissenting  opinion, 
observes,  "  The  opinion  of  the  state  court  shows  that  the 
judgment  went  upon  the  original  and  inherent  invalidity  of  the 
coupon  statutes,  and  its  judgment  in  that  respect,  as  I  shall 
hereafter  attempt  to  show,  gave  no  effect  to  any  subsequent 
legislation." 

The  question  was  then  squarely  before  the  court.  Is  a 
decision  adjudging  an  act  void  which,  during  a  long  period  of 
years,  the  same  court  had  held  valid,  a  "  law  "  impairing  the 
obligation  of  contracts ;  or,  in  other  words,  had  the  court 
authority  to  review  ? 

This  is  a  peculiarly  strong  case.  Mr.  Justice  Brewer  ob- 
serves :  "  Now,  at  the  end  of  twenty-seven  years  from  the 
passage  of  the  act,  we  are  asked  to  hold  that  this  guarantee  of 
value,  so  fortified  as  it  has  been,  was  never  of  any  validity, 
that  the  decisions  to  that  effect  are  of  no  force,  and  that  all 
the  transactions  which  have  been  had,  based  thereon,  rested 
on  nothing.  Such  a  result  is  so  startling  that  it,  at  least, 
compels  more  than  ordinary  consideration."  These  consid- 
erations were  so  powerful  as  almost  to  overthrow  the  court's 
hesitancy  to  call  a  spade  a  spade  and  admit  that  this  decision 
was  a  "  law." 

The  court  did  assume  jurisdiction,  but  not  upon  the  ground 
we  have  indicated.  Instead,  it  cast  about  for  an  excuse  to 
take  cognizance  of  the  case,  and  finally  hit  upon  the  expedient 
of  saying  that,  while  the  decision  did  not  refer  to  the  later  acts, 
yet  its  effect  was  to  uphold  them  by  removing  the  only  consti- 
tutional bar  to  their  validity  ;  i.  e.,  vested  rights  acquired  under 
the  act  of  '71. 


90  SOME  Ki:CKNT  CRITICISM  OF 

This  reasoniivj^  is,  iiulocd,  most  aUcmiatcd,  and  Mr.  Justice 
Pcckhani,  dissontini,\  cffoctually  shatters  it.  He  says:  "The 
state  court  has  held  the  coupon  acts  to  be  entirely  void,  be- 
cause in  violation  of  the  state  constitution  in  existence  when 
tiK'\-  were  passed.  .  .  .  Tliis  judgment  did  not  give  tlie 
slightest  effect  to  the  legislation  subsequent  to  the  coupon 
statutes.  It  simply  held  there  were  no  coupon  statutes  be- 
cause those  which  purported  to  be  such  were  totally  void. 
No  subsequent  statute  was  necessary,  and  none  such  was 
given  effect  to.  Striking  down  the  coupon  statutes  effectually 
destroyed  any  assumed  right  to  pay  taxes  in  coupons,  and  the 
subsequent  legislation  was  needless  and  ineffectual." 

This  language  is  quoted,  not  because  we  concur  in  Mr. 
Justice  Peckham's  dissent,  for  we  do  not,  but  to  show  how 
completely  the  court  failed  to  justify  its  assumption  of  juris- 
diction on  this  ground. 

We  submit  that  the  case  was  correctly  decided,  but  that, 
though  not  directly  asserted,  the  real  ground  of  taking  juris- 
diction was  because  the  State  of  Virginia  was  attempting  to 
impair  the  obligation  of  contracts  by  judicial  legislation. 

If  this  be  not  admitted  then  we  mu.st  concur  with  Mr.  Justice 
Peckham  that  the  court  had  no  jurisdiction. 

This  case  plainly  indicates  that  the  Supreme  Court,  realizing 
\\\z.\.  judicial  interpretation  docs  have  all  the  force  of  law,  and  that 
a  change  of  construction  does  impair  the  obligation  of  contracts  Just 
as  effectually  as  positive  statutes,  are  eagerly  catching  at  every 
theory,  no  matter  how  shadowy,  to  give  them  jurisdiction. 

We  hope  the  time  is  not  far  distant  when  they  will  cease 
offering  apologetic  theories  for  assuming  the  jurisdiction  which 
is  theirs  by  right. 

C.    The  question  of  jurisdiction  examined  on  principle. 

In  view  of  the  conclusions  worked  out  in  the  preceding 
sections  of  this  paper,  it  was  really  unnecessary  to  discuss  the 
action  of  the  court  under  A  and  B,  but  we  do  so  to  show  how 
grave  is  the  situation  before  us,  and  that  the  court  are  already 
ncaring  the  point  where  they  are  ready  to  accept  the  full 
theory  of  judicial  legislation. 


GELPCKE  VERSUS  DUBUQUE.  9 1 

We  cannot  better  illustrate  the  theory  that  the  court  have 
power  to  assume  jurisdiction  than  by  making  use  of  the  facts 
involved  in  Railroad  v.  Rock,  which,  it  will  be  remembered,  are 
similar  to  Gelpcke  v.  Dubuque,  except  in  that  the  parties  were 
both  citizens  of  Iowa. 

We  will  take  Mr.  Justice  Miller  at  his  word,  and  assume 
that  no  cases  can  be  brought  into  the  Supreme  Court  by  writ 
of  error  under  the  25th  section  of  the  Judiciary  Act,  unless  the 
judgment  of  the  .state  court  has  upheld  a  law  passed  subse- 
quently to  the  making  of  the  contract.  As  to  the  meaning  of 
law,  we  quote  from  Mr.  Justice  Field's  opinion  in  Williams  v. 
Bruffy :  ^  "Any  enactment,  from  whatever  source  originating, 
to  which  a  state  gives  the  force  of  law,  is  a  statute  of  the  state 
within  the  meaning  of  the  clause  cited  relating  to  the  jurisdic- 
tion of  the  court." 

The  Iowa  Supreme  Court,  in  Railroad  v.  Rock,  decided  two 
separate  and  distinct  points  : 

(1)  That  the  legislative  act  was  invalid. 

(2)  That  that  interpretation  should  be  applied  to  the  contract 
before  it. 

The  first  point  the  Supreme  Court  had  no  jurisdiction  to 
review.  It  could  no  more  interfere  with  it  than  it  could 
have  repealed  a  repealing  act  overturning  the  same  law.  But 
what  about  the  second  point  ?  Here  the  state  court  applied 
an  interpretation  of  a  statute  to  a  contract  so  as  to  impair  its 
obligation.  "  That  interpretation  of  a  statute,"  as  we  have 
shown,  is  really  an  act  of  a  legislative  character.  That  part 
of  the  decision,  which  was  purely  judicial,  upheld  this  "  inter- 
pretation." It  therefore  upheld  a  "  law."  The  fact  that  the 
same  case  involved  both  points  makes  the  principle  more  diffi- 
cult to  see,  but  not  less  sound. 

That  a  decision  may  involve  both  functions  is  not  unfounded 
in  authority.  In  the  English  case  of  Winthrop  v.  Lechmere  a 
colonial  act  of  Connecticut  was  declared  void  (because  it  was 
adjudged  to  be  in  conflict  with  the  English  law)  by  an  order 
in    council.     The    decision    also    involved   a    review   of   four 

1  96  U.  S.  176  (1877),  Field,  J. 


92  SOME  RECENT  CRITICISM  OF 

judicial  sentences,  ami  one  judicial  onlcr  of  the  Superior 
Court  of  Connecticut.  Mr.  Brinton  Coxe  says  :  "  In  the 
writer's  opinion,  the  order  in  council  determining  the  appeal 
of  Winthrop  v.  Lcclunere  was  actually  of  a  mixed  nature.  He 
deems  it  partly  judicial  and  partly  legislative.  It  was  no  mere 
judicial  judgment.  That  part  of  it  was  judicial  which  reversed 
and  set  aside  the  four  sentences  and  declared  the  order  of  the 
court  to  be  null  and  \oid.  That  part  of  it  was  legislative 
which  declared  the  two  acts  of  the  colonial  legislature  to  be 
null  and  void.  The  writer  understands  this  view  to  be  sup- 
ported by  authority.  In  an  order  in  council  dated  April  lo, 
1730,  the  order  in  council  determining  Winthrop  v.  LecJimcre 
is  referred  to.  The  action  therein  taken  concerning  the  Con- 
necticut act  for  settling  intestates'  estates,  is  expressly  called 
a  repeal  of  that  act."^ 

This  is  precisely  the  position  which  we  now  assume.  That 
part  of  the  Iowa  decision  which  declared  the  act  null  and  void 
was  legislative  ;  it  may  be  referred  to  in  the  language  above 
cited,  as  a  "  repeal  of  the  act."  That  part  of  the  Iowa  de- 
cision which  upheld  that  "  repeal  "  and  so  applied  it  as  to 
impair  the  obligation  of  the  contract  before  it,  was  judicial. 
It  was,  therefore,  a  judicial  decision  by  the  Supreme  Court  of 
the  state,  upholding  and  applying  a  "law"  which  impaired 
the  obligation  of  the  contract,  and  it  should  have  been  re- 
viewed on  writ  of  error  by  the  Supreme  Court  of  the  United 
States. 

The  objection  that  this  would  throw  open  the  door  to  avast 
multitude  of  new  cases,  even  if  it  were  a  legitimate  objection, 
is  not  true.  Mr.  Justice  Miller  says  that  to  allow  writs  of  error 
in  such  cases  would  be  "  to  permit  an  appeal  to  betaken  every 
time  a  state  court  adjudged  a  contract  to  be  void  which  we 
might  think  to  be  valid."  It  is  submitted  that  this  reasoning 
cannot  be  supported.  It  springs  from  the  same  fundamental 
error  of  assuming  that  it  was  the  construction  of  the  contract,  and 
not  the  interpretation  of  the  act  which  impaired  its  obligation. 

We  submit  that,  if  a  principle  be  correct,  it  should  be  made 

'  See  Judicial  Power  and  Unconstitutional  Legislation,  p.  212. 


GELPCKE  VERSUS  DUBUQUE.  93 

a  rule  of  action,  even  though  additional  cases  will  thereby  be 
admitted  to  the  courts,  and  that  the  vast  horde  of  contracts, 
adjudged  void,  which  Mr.  Justice  Miller  saw,  in  his  imagina- 
tion, ready  to  swarm  into  the  Supreme  Court  as  soon  as  they 
opened  the  door  to  cases  like  Railroad  v.  Rock,  had  no  exist- 
ence elsewhere.  Cases  Hke  Railroad  v.  Rock  would  in  all 
probability  be  less  numerous  than  those  like  Gelpcke  v. 
Dubuque. 

Mr.  Justice  Miller  further  declares  that  there  could  be  here 
no  impairment,  because  the  state  court  by  its  construction  of 
its  own  statute,  which  was  conclusive,  had  decided  that  no 
contract  ever  existed.  This  is  arguing  in  a  circle.  It  assumes 
in  the  first  place  that  a  state  decision  altering  its  former  inter- 
pretation and  declaring  a  statute  void,  makes  it  void  ab  initio, 
which  is  the  very  point  at  issue,  and,  in  the  second  place,  it 
again  confuses  the  two  separate  and  distinct  things,  the  inter- 
pretation of  the  act  and  the  construction  of  the  contract. 

It  is  said  further  that  the  federal  clause  is  aimed  at  the 
legislative  acts  of  the  states  and  not  at  the  decisions  of  its 
courts.  This  is  of  course  true  in  theory.  But  this  theory  is 
not  contradicted  because,  as  we  have  shown,  the  decisions  in 
the  cases  we  are  discussing  are  "  legislative  acts  "  in  their 
intrinsic  nature. 

It  is  also  declared  that  to  allow  writs  of  error  would  be  to 
permit  the  Supreme  Court  to  interfere  with  the  state  court's 
construction  of  state  statutes.  As  we  have  already  pointed 
out,  in  no  sense  would  this  be  true.  The  federal  clause,  while 
theoretically  aimed  at  the  fundamental  power  of  the  state  to 
make  the  law,  really  operates  by  preventing  the  application  of 
forbidden  laws  by  the  state  courts.  As  the  Supreme  Court 
cannot  get  out  a  writ  of  injunction  to  prevent  a  state  from 
passing  a  law  impairing  the  obligation  of  contracts,  nor  repeal 
it  when  it  has  been  passed,  so  they  cannot  prevent  nor  change 
the  state  court's  construction  of  its  laws.  In  both  cases  the 
power  of  the  court  is  simply  preventive. 

They  say  to  the  state  legislature,  "  Pass  what  laws  you 
please,  we  have  no  power  to  prevent  you,  but  if  your  courts 
so  apply  a  law  as  to  impair  the  obligation  of  a  contract  in  a 


94  SOME  RECENT  CRITICISM  OK 

particular  cixsc,  then  \vc  shall  step  in  ami  protect  that  contract." 
In  most  cases  this  practicalK'  nullifies  the  law,  but  in  any  case 
the  court  do  not  go  be)-onti  the  rights  which  they  are  protect- 
ing. The  law  may  impair  the  obligation  of  the  contract  before 
them,  and  yet  be  valid  as  to  other  contracts.  In  such  a  case 
the  court  content  themselves  with  neutralizing  its  effect  in  the 
case  before  them.' 

So,  in  the  same  manner,  the  Supreme  Court,  addressing 
themselves  to  the  state  court,  say:  "  Interpret  your  laws  as 
you  see  fit.  We  have  no  power  to  prevent  you.  But  if  you 
so  apply  an  interpretation  as  to  impair  the  obligation  of  a  con- 
tract, then  we  shall  protect  that  contract." 

To  both  the  court  say  :  "  Whatever  you  may  or  may  not 
do,  here  is  one  field  into  which  you  may  not  enter.  We 
stand  here  by  virtue  of  the  duty  and  privilege  laid  upon  us  by 
the  Constitution  of  the  Union  to  prevent  it,  and  we  shall  pre- 
vent it.  But  we  have  no  intention  of  interfering  with  you  in 
those  fields  where  we  admit  you  to  be  supreme." 

The  fear  that  the  liberty  of  the  state  court  to  interpret  its 
own  laws  will  be  taken  away  is  thus  seen  to  be  unfounded. 
The  power  to  do  that  does  not  exist.  It  is  only  the  purely 
judicial  action  in  applying  either  the  statute  or  the  interpreta- 
tion of  that  statute  which  can  be  reviewed  by  the  Supreme 
Court. 

After  all,  the  objection  most  often  urged  to  permitting  writs 
of  error  in  this  class  of  cases  is  a  technical  one.  It  is  said 
that  the  judiciary  act  provides  that  a  subsequent  law  must  be 
upheld  before  the  writ  can  be  allowed.  We  believe  that  up- 
holding an  authoritative  interpretation  of  a  statute  is  upholding 
a  "  law."  But  if  we  are  to  be  hindered  by  a  procedural  diffi- 
culty, when  we  are  resting  upon  our  constitutional  rights,  the 
difficulty  should  be  obviated  by  altering  the  language  of 
the  act. 

Although  sometimes  said,  with  fine  irony,  to  be  quite  un- 
usual in  the  law,  it  may  not  be  amiss  to  survey  this  question, 
for  a  moment,  from  the  standpoint  of  common  sense. 

'  Sturgis  V.  Crowninshield,  4  Wheat.  122  (1879),  Marshall,  C.J. 


GELPCKE  VERSUS  DUBUQUE.  95 

Every  one  can  see  that  to  permit  a  court  to  unsettle  rights, 
acquired  during  a  long  period  of  years,  upon  the  faith  of  a 
law,  sanctioned  by  every  department  of  government,  ought  not 
to  be  allowed.  Every  business  man  knows  that  a  system 
which  makes  it  impossible  for  one  ever  to  be  sure  what  the 
statute  law  is,  is  most  dangerous  to  the  welfare  of  the  commu- 
nity. It  does  not  require  one  learned  in  the  law  to  see  that 
the  decisions  in  Gelpcke  v.  Dubuque  and  kindred  cases  are 
pre-eminently  just. 

This  may  not  be  an  argument,  but,  as  practical  men,  we 
know  that  the  law  exists  for  the  purpose  of  doing  justice,  and 
this  fact  should  cause  us  to  think  twice  before  rejecting  a 
theory  which  admittedly  has  always  been  just  in  its  applica- 
tion, and  before  we  refuse  to  apply  that  principle  to  a  class  of 
suitors  equally  as  deserving  as  those  to  whom  relief  is  granted. 

Moreover,  the  full  significance  of  the  action  of  the  court  in 
refusing  to  assume  jurisdiction  has  never  yet  been  fully  real- 
ized. If  a  state  can,  by  judicial  legislation,  pass  laws  impairing 
the  obligation  of  contracts,  it  can  also,  in  the  same  manner, 
enact  ex  post  facto  laws.  Suppose,  to  take  an  extreme  case, 
the  offence  of  horse  stealing  at  common  law  is  punishable  with 
death.  Suppose  a  state  passes  a  law  reducing  the  punishment 
to  fine  and  short  imprisonment.  Suppose,  for  a  long  period  of 
years,  this  act  is  enforced  by  the  courts  and  is  uniformly  held 
to  be  constitutional.  The  court  then  reverses  its  ruling  and 
declares  the  act  null  and  void.  If  Mr.  Justice  Miller's  reason- 
ing be  correct,  all  those  individuals  who  have  stolen  horses  in 
the  meantime  can  be  condemned  to  death.  It  is  no  answer  to 
say  that  the  state  would  probably  not  take  such  action.  If  the 
principle  be  sound  it  must  be  correct  in  all  possible  situations. 
We  submit  that  if  a  state  should  attempt,  by  judicial  action,  to 
thus  in  effect  enact  an  ex  post  facto  law,  the  Supreme  Court 
would  speedily  forget  their  procedural  scruples  and  would 
assume  jurisdiction. 

As  lawyers,  we  know  that  judicial  legislation  is  a  fact  with 
which  we  have  to  deal.  We  know  that  the  states  can  and 
often  do  impair  the  obligation  of  contracts  with  impunity  by 
means  of  legislative-judicial  action.     We  see  also  a  constantly 


96  SOME  KKCKNT  CKITICISM,  KTC. 

incrcasinj;  tendency  on  the  part  of  the  stale  courts  to  consti- 
tute themselves  not  only  the  jud;j;es  of  the  coustitutionality  of 
legislative  acts,  but  even  judges  of  whether  a  law  be  not,  in 
their  opinion,  improper,  as  appears  from  the  opinion  of  a  judge 
who  arrogates  to  himself  the  right  to  overturn  a  law,'  because 
it  "  is  a  species  of  sumptuary  legislation  which  has  been  uni- 
versally condemned  as  an  attempt  to  degrade  the  intelligence, 
virtue  and  manhood  of  the  American  laborer  and  foist  upon 
the  people  a  paternal  government  of  the  most  objectionable 
character,  because  it  assumes  that  the  employer  is  a  knave 
and  the  laborer  an  imbecile."  This  is  judicial  legislation,  what- 
ever may  be  thought  of  the  principle.  It  should,  in  all  cases, 
be  recognized  as  such,  and  its  effect  defined  and  restrained,, 
not  given  the  unlimited  extent  of  purely  judicial  decisions. 


^  State  V.  Goodwill,  33  W.  Va.  802  (i 


Authorities  bearing  on  qiiGBtion  of  Federal 
Coiirts  follov.dnr-;  state  decisionrs  in  con- 
struing state  statutes,   etc. 
'*?roTincen  of  the  written  and  unv/rltten 
lav/."       By  Ja::.,  C.  Carter. 

''I^he  Idt==al  aM  /otiial  in  Law" 
By  Jas.  n.  Carter. 

5  Harvard  Lav;  Keview,   YfP.,  Prof.  Thayer. 
4       »'         "         '*       411 

6  ''  ♦•  •'  21       "         Grey 

8  "  "  "        328  '".and 
29  Central  Lav;  Journtil,   /.b^,   /-jB^,  ileigs. 

9  American  La??  "Review,  3^1 

14  211-216 

22  "   '       ''       ."  190 

23  ■■  "         ''  130 

22  Southern    *'         '*        /rticle  by  Meigs. 
Holland's  :%lenents  of  Jur5.sx)rT.ide]ic:.e, 
/ec.   61.  , 

2  Thayer* 0  Constit'itioivil  Cases,   155^-  N. 
'.Vambauch  ritudy  of  Cases,  Y^  ^  3^5  ''• 

As  to  what  is  a  (jixestion  of  general 
jurispradence,    boo  29  Central  Law 
Journal,   4''^^*   ^^« 


-t. 


fL 


